I 


•  Ca>ltfornia, 


A 


V 


UCSB    LIBRARY 


».„»,« 
>  N    >      '  *     .  \    •  *+ .  >  :4  -5f  * ,' 


Extract  of  a  Letter  from  Chancellor  Kent  to  the  Author, 

NEW  YORK,  August  27, 1840. 
DEAR  SIR : 

"  I  am  much  pleased  with  the  ability,  fidelity  and  accuracy  with  which  you  have  stated 
the  Answers  as  drawn  from  the  Text.  I  approve  of  the  work  and  wish  it  success,  for  I  think 
it  is  well  calculated  to  facilitate  and  promote  the  study  and  diffusion  of  the  elementary  prin- 
ciples of  constitutional  and  municipal  law  embodied  in  the  commentaries." 

JAMES  KENT. 


THE 


MOST  IMPORTANT  PARTS 


OF 


KENT'S    COMMENTARIES, 


REDUCED   TO 


QUESTIONS  AND  ANSWERS. 


BY 

ASA    KINNE. 


SECOND  EDITION. 


NEW  YORK: 
PUBLISHED  BY  W.  E.  DEAN,  2  ANN  STREET, 

COLLINS,  KEESE,  &  CO.,  254  PEARL  STREET. 
PHILADELPHIA  :    THOMAS,  COWPERTHWAITE  &  CO.,  255  MARKET  STREET. 

1840. 


DISTRICT  OF  COLUMBIA,  TO  WIT : 

Be  it  remembered,  that  on  the  twenty-sixth  day  of  October,  Anno  Domini,  eighteen  hundred 
and  thirty-eight,  Asa  Kinne  of  the  said  District,  deposited  in  this  office  the  title  of  a  book,  the 
title  of  which  is  in  the  words  following  :  "  The  most  important  parts  of  Kent's  Commen- 
taries, reduced  to  questions  and  answers  ;  by  Asa  Kinne  :"  the  right  whereof  he  claims  as 
proprietor.  In  conformity  with  an  Act  of  Congress,  entitled  "  An  act  to  amed  the  several 
acts  respecting  Copy  Rights." 

EDM.  J.  LEE,  Clerk  of  the  District. 
In  conformity  that  the  above  is  a  true  copy, 
from  the  records  of  the  District  Court  for  the 
District  of  Columbia,  I,  Edtn.  J.  Lee,  the 
Clerk  thereof,  have  hereunto  set  my  hand 
and  affixed  the  seal  of  my  office,  this  twenty- 
sixth  day  of  October,  eighteen  hundred  and 
thirty-eight. 

EDM.  J.  LEE,  C.  D.  C. 


Entered  according  to  an  Act  of  Congress,  in  the  year  1838,  by  Asa  Kinne,  in  the  Clerk's 
Office  of  the  District  Court  for  the  District  of  Columbia. 


DEAN,  PRINTER. 


TO  THE 

HON.  JAMES    KENT,  L.L.D. 

LATE  CHANCELLOR  OF  THE  STATE  OF  NEW  YORK, 

THIS  VOLUME  IS  INSCRIBED, 

WITH  SENTIMENTS  OF  THE  MOST  PROFOUND  RESPECT  AND  ESTEEM 
FOR   HIS  TALENTS  AND  INTEGRITY,   AND   THE    RARE 
COMBINATION  OF  VIRTUES  WHICH  GUIDED  HIM 
IN  THE  DISCHARGE  OF  HIS  DUTIES  AS 
A  PUBLIC  OFFICER,  AND  ADORN 
HIS    CHARACTER  IN 
PRIVATE  LIFE. 


PREFACE. 


To  demonstrate  the  usefulness  of  the  following  work,  which  is  now 
offered  to  the  public  generally,  as  well  as  to  the  legal  profession,  a  pre- 
face might  be  deemed  a  work  of  supererogation,  as  its  utility  must  be  ob- 
vious to  the  general  reader. 

The  few  remarks  which  follow,  are  given  more  out  of  a  compliance  to 
custom,  than  as  an  apology  for  the  work  itself. 

A  writer  in  the  British  Register  very  judiciously  observes,  that  "  Of 
the  subjects  of  human  knowledge,  law  is  far  from  being  the  least  impor- 
tant ;  within  the  last  fifty  years,  not  only  general  law,  but  the  law  of  the 
country  in  which  we  live,  has  been  considered  as  an  object  of  liberal  in- 
quiry, and  well  deserving  the  attention  of  the  general  scholar." 

The  labours  of  the  venerable  chancellor  Kent,  have  contributed  in  no 
small  degree  to  disseminate  this  branch  of  useful  knowledge  ;  through  his 
unwearying  exertions  and  untiring  zeal,  this  beautiful,  but  abstruse  and 
difficult  study  has  been  rendered  at  once  pleasing  and  instructive. 

"  The  work  of  Sir  William  Blackstone,  by  the  elegance  of  its  style,  its 
lucid  arrangement  and  finished  execution,  is  so  well  adapted  to  render 
the  study  of  the  law  attractive,  and  to  give  a  knowledge  of  the  constitu- 
tion and  laws  of  England,  well  deserving  the  attention  of  every  liberal 
mind,  that  it  has  been,  (though  for  many  years,  more  from  necessity  than 
choice,)  very  properly  placed  in  the  hands  of  every  law  student,  but  as 
much  of  those  admirable  Commentaries  relate  to  the  political  constitution 
of  England,  so  different  from  our  own,  to  its  peculiar  institutions,  and  to 
rights  and  duties,  public  and  private,  not  existing  in  this  country ;  an 
American  work,  exhibiting  our  own  constitution,  laws,  usages,  and  civil 
relations,  had  long  been  wanted.  In  the  full  maturity  of  his  understand- 
ing, with  a  mind  long  habituated  to  legal  investigations  and  researches, 
and  with  sound  and  enlightened  views  of  jurisprudence,  no  man,  perhaps, 
could  have  been  better  fitted,  than  chancellor  KENT  to  execute  such  a 
work,  and  it  may  diminish,  in  some  degree,  the  regret  felt  for  the  loss 
sustained  by  the  public  and  the  legal  profession,  in  being  deprived  of  his 


VI  PREFACE. 

valuable  services  on  the  bench,  to  know  how  usefully  to  the  world,  and 
honourably  to  himself,  he  has  employed  his  time  and  talents  in  its  per- 
formance."* 

Since  its  publication  the  demand  for  it  has  been  very  great.  I  will 
even  presume  to  say,  that  no  work  of  the  kind  ever  attained  so  great  a 
circulation  in  so  short  a  time,t  the  masterly  production  of  judge  Black- 
stone  not  excepted.  In  the  southern  and  western  portions  of  our  repub- 
lic it  is  to  be  found  in  almost  every  family,  and  indeed  its  circulation  has 
become  so  general,  as  to  warrant  the  assertion  that  there  are  few  indi- 
viduals of  polished  education,  who  have  not  read  "Kent's  Commentaries  ;" 
and  in  the  libraries  of  the  learned  of  every  profession,  they  will  ever  hold 
a  conspicuous  place. 

It  will  be  seen  that  the  present  work  is  intended  to  be  a  companion  to, 
and  not  a  substitute  for,  the  Commentaries  themselves,  and  it  is  obvious 
to  the  most  superficial  observer,  that  it  does  not  contain  all  that  is  neces- 
sary to  be  known  of  the  original ;  on  the  contrary,  its  object  is  to  assist 
the  student  in  the  perusal  of  the  Commentaries.  The  compiler  has  found 
the  manuscript  to  be  of  incalculable  benefit  to  himself,  in  the  progress  of 
his  studies,  and  the  advantages  which  he  has  himself  derived  from  it,  he 
now  wishes  to  extend  to  his  professional  friends,  and  to  the  literati  in 
general. 


*  American  Portrait  Gallery,  No.  XVII.,  p.  10. 

t  The  first  volume  appeared  November,  1826;  the  second  volume  was  published 
in  November,  1827 ;  the  third  in  1828,  and  the  fourth  in  1830. 


PREFACE 


TO   THE  SECOND  EDITION. 

IN  publishing  the  present  edition  of  his  compendium  of  the  Commen- 
taries on  American  Law,  the  compiler  deems  it  proper  to  state  that  the 
first  edition  which  consisted  of  a  few  copies  only  and  which  was  hastily 
printed  from  old  manuscript,  has  (owing  to  the  unprecedented  popularity 
of  the  Commentaries  themselves  and  the  great  and  well  earned  fame  of 
the  Commentator,  which  renders  every  thing  in  law  literature  with  which 
it  is  connected  an  object  of  interest  to  the  American  public,)  met  with  an 
unexpected  demand.  In  consequence  of  which  a  larger  edition  is  now 
published,  and  in  which  is  incorporated  more  than  one  hundred  pages  of 
important  matters  not  contained  in  the  former  edition.  An  Index  and 
Glossary  are  also  affixed,  referring  to  question  and  page,  which  it  is  hoped 
will  be  some  addition  to  the  general  utility  of  the  work. 

N.  B.  The  Commentaries  referred  to  are  the  third  edition,  published 
in  1836. 


CONTENTS. 


LECTURE  I. 

Of  the  foundation  and  history  of  the  law  of  nations,  •.  .  .  9 

LECTURE  II. 

Of  the  rights  and  duties  of  nations  in  a  state  of  peace,  •.          15 

LECTURE  III. 
Of  the  declaration  and  other  early  measures  of  a  state  of  war,  .  .        19 

LECTURE  IV. 
Of  the  various  kinds  of  property  liable  to  capture^        ....        23 

LECTURE  V. 
Of  the  rights  of  belligerent  nations  in  relation  to  each  otherj  *  -.       24 

LECTURE  VI. 
Of  the  general  rights  and  duties  of  neutral  nations,      .  .  .27 

LECTURE  VII. 
Of  restrictions  upon  neutral  trade,          ......        30 

LECTURE  VIII. 

Of  truces,  passports,  and  treaties  of  peace,         »  ....        34 

LECTURE  IX. 
Of  offences  against  the  law  of  nations,  ......        37 

LECTURE  X. 
Of  the  history  of  the  American  union,    ......        39 

LECTURE  XI. 
Of  congress,  .........        39 

LECTURE  XII. 
Of  the  judicial  constructions  of  the  powers  of  congress,  .        41 


X  CONTENTS. 

LECTURE  XIII. 

Of  the  president,    .  .  .  .  .  .  .        '  .  .        44 

LECTURE  XIV. 
Of  the  judiciary  department,  .......  45 

LECTURE  XV. 
Of  the  original  and  appellate  jurisdiction  of  the  supreme  court,  .  48 

LECTURE  XVI. 


in  respect  to  the  parties,      .            .                        .            . 

i  law,  aim 

.           .        49 

LECTURE  XVII. 

Of  the  district  and  territorial  courts  of  the  United  States, 

51 

LECTURE  XIX. 

Of  constitutional  restrictions  on  the  powers  of  the  several  states, 

54 

LECTURE  XX. 
Of  the  statute  law,              ..... 

Fift 

LECTURE  XXI. 

Of  reports  of  judicial  decisions,  .           .                       . 

61 

LECTURE  XXIII. 

LECTURE  XXIV. 

Of  the  absolute  rights  of  persons,            .... 

LECTUR!  xxv. 

63 

Of  aliens  and  natives,       .                    •  . 

67 

LEC  PURE  XXVI. 

Of  the  law  concerning  marriage,             .... 

69 

LECTURE  XXVII. 

Of  the  law  concerning  divorce,                .... 

72 

LECTURE  XXVIII. 

Of  husband  and  wife,      .  .-•        .  .     •      •.'  . 

75 

LECTURE  XXIX. 

Of  parent  and  child,          .         ..           ..';. 

82 

LECTURE  XXX. 

Of  guardian  and  ward,      .           ,  ,        .......' 

.        83 

LECTURE  XXXI. 

Of  infants,          .  .           .           .           . 

86 

LECTURE  XXXII. 

Of  master  and  servant,     ...... 

;     ss 

CONTENTS.  XI 

Page 
LECTURE  XXXIII. 

Of  corporations,  ........        89 

LECTURE   XXXIV. 
Of  the  history,  progress  and  absolute  rights,  of  property,  ,  .93 

LECTURE  XXXV. 
Of  the  nature  and  various  kinds  of  personal  property,  .  .  .93 

LECTURE  XXXVI. 
Of  title  to  personal  property  by  original  acquisition,      .  .  .  .95 

LECTURE  XXXVII. 
Of  title  to  personal  property  by  transfer  and  by  act  of  law,      .  .  .97 

LECTURE  XXXVIII. 
Of  title  to  personal  property  by  gift,        ......        99 

LECTURE  XXXIX. 
Of  contracts,          .........      100 

LECTURE  XL. 
Of  bailment,  .........      106 

LECTURE  XLI. 
Of  principal  and  agent,     .  .  .  .  .  .  .  108 

LECTURE  XLII. 
Of  the  history  of  maritime  law,  .  .  .  .  .  .      117 

LECTURE  XLIII. 
Of  the  law  of  partnership,  .......       120 

LECTURE  XLIV. 
Of  negotiable  paper,         ........      128 

LECTURE  XLV. 
Of  title  to  merchant  vessels,          .......       136 

LECTURE  XLVI. 
Of  the  persons  employed  in  the  navigation  of  merchant  ships,  .  .      140 

LECTURE  XLVII. 
Of  the  contract  of  affreightment,  .  .  .  .  .      145 

LECTURE  XL VIII. 
Of  the  law  of  marine  insurance,  ......       151 

LECTURE  XLIX. 
Of  maritime  loans,  ........       163 

LECTURE  L. 
Of  insurance  of  lives  and  against  fire,     .  .  .  .  .  .      166 


Xll  CONTENTS. 

Paga 
LECTURE  LI. 

Of  the  foundation  of  title  to  lands,          ......      167 

LECTURE  LII. 
Of  incorporal  hereditaments,  .  .....  168 

LECTURE  LIII. 
Of  the  history  of  feudal  tenure,  ......  172 

LECTURE  LIV. 
Of  estates  in  fee,  ........  .  175 

LECTURE  LV. 

Of  estates  for  life,  .  ...      183 

LECTURE  LVI. 

Of  estates  for  years,  at  will,  and  at  sufferance,  ....      194 

LECTURE  LVII. 
Of  estates  upon  condition,  .....  .  195 

LECTURE  LVIII. 
Of  the  law  of  mortgage,   ...  ....      196 

LECTURE  LIX. 
Of  estates  in  remainder,  .......      'Ml 

LECTURE  LX. 
Of  executory  devises,  .  .....  205 

LECTURE  LXI. 
Of  uses  and  trusts,  .  ....  208 

LECTURE  LXII. 
Of  powers,  .  .  .  .....  211 

LECTURE  LXIII. 
Of  estates  in  reversion,  .....  .  213 

LECTURE  LXIV. 

Of  a  joint  interest  in  estates,    ^  ".'•*'.        ......      214 

LECTURE  LXV. 

Of  title  by  descent,  .  .  .  .  .      217 

LECTURE  LXVI. 

Of  title  by  escheat,  by  forfeiture,  and  by  execution,       .  .  .      220 

LECTURE  LXVII. 

Of  title  by  deed,     .  ...  .•'.•''.•  .      222 

LECTURE  LXVIII. 

Of  title  by  will  or  devise,  ...  .  ,  .      233 


KENT'S  COMMENTARIES, 


REDUCED    TO 


QUESTIONS  AND  ANSWERS. 


LECTURE    I. 

OF  THE  FOUNDATION  AND  HISTORY  OF  THE 
LAW  OF  NATIONS. 

1.  When  the  United  States  ceased  to  be  a  part  of  the  British  empire, 
and  assumed  the  character  of  an  independent  nation,  to  what  rules  did 
they  become  subject  ? — 1 

They  became  subject  to  that  system  of  rules  which  reason,  morality, 
and  custom,  had  established  among  the  civilized  nations  of  Europe,  as 
their  public  law. 

2.  What  did  congress  claim,  and.to  what  did  they  profess  obedience, 
during  the  war  of  the  American  revolution  ?—  1 

They  claimed  cognizance  of  all  matters  arising  upon  the  law  of  na- 
tions, and  they  professed  obedience  to  that  law,  according  to  the  general 
usages  of  Europe. 

3.  What  are  we  to  understand  by  that  law  1  —  1 

That  code  of  public  instruction  which  defines  the  rights,  and  pre- 
scribes the  duties  of  nations  in  their  intercourse  with  each  other.  The 
faithful  observance  of  this  law  is  essential  to  national  character,  and  to 
the  happiness  of  mankind. 

4.  Upon  what,  "  according  to  the  observation  of  Montesquieu,"  is  it 
founded  ? — 1 

It  is  founded  on  the  principle  that  different  nations  ought  to  do  as 
much  good  in  peace1,  and  as  little  harm  in  war  as  possible,  without  in- 
jury to  their  true  interests. 

5.  What  difference  of  opinion  has  existed  between  writers  concerning 
the  foundation  of  international  law  ? — 2 

2 


10  KENT'S  COMMENTARIES,  [VOL.  i. 

It  has  been  considered  by  some  as  a  mere  system  of  positive  institu- 
tions, founded  upon  consent  and  usage  ;  while  others  have  insisted  that  it 
was  essentially  the  same  as  the  law  of  nature  applied  to  the  conduct  of 
nations  in  the  character  of  moral  persons,  susceptible  of  obligations  and 
laws.  But  it  would  be  improper  to  separate  this  law  entirely  from  natural 
jurisprudence,  and  not  to  consider  it  as  deriving  much  of  its  force,  and  dig- 
nity, and  sanction,  from  the  same  principles  of  right  reason,  and  the  same 
views  of  the  constitution  and  nature  of  man,  as  those  from  which  the 
science  of  morality  is  deduced.  We  ought  not,  therefore,  to  separate  the 
science  of  public  laws  from  that  of  ethics,  nor  encourage  the  dangerous 
suggestion,  that  governments  are  not  so  strictly  bound  by  the  obligations 
of  truth,  justice,  and  humanity,  in  relation  to  other  powers,  as  they  are  in 
the  management  of  their  own  local  concerns. 

6.  How  is  the  law  of  nations  divided? — 2 
Into  natural  and  positive. 

7.  How  are  states,  or  bodies  politic,  to  be  considered  ? — 3 

As  having  a  public  will,  capable  and  free  to  do  right  or  wrong. 

8.  Of  what  does  the  law  of  nations  consist? — 3 

It  is  a  complex  system,  composed  of  various  ingredients.  It  consists 
of  general  principles  of  right  and  justice,  equally  suitable  to  the  govern- 
ment of  individuals  in  a  state  of  natural  equality,  and  to  the  relation  and 
conduct  of  nations  ;  of,  a  collection  of  usages  and  customs,  the  growth  of 
civilization  and  commerce  ;  and  a  code  of  conventional  or  positive  law. 
In  the  absence  of  these  latter  regulations,  the  intercourse  and  conduct  of 
nations  are  to  be  governed  by  principles  fairly  to  be  deduced  from  the 
rights  and  duties  of  nations,  and  the  nature  of  moral  obligation. 

9.  Is  international  law  of  ancient  or  modern  origin? — 4 

As  understood  by  the  European  world,  and  by  us,  it  is  the  offspring 
of  modern  times.  The  most  refined  states  among  the  ancients,  seem  to 
have  had  no  conception  of  the  moral  obligations  of  justice  and  humanity 
between  nations,  and  there  was  no  such  thing  in  existence  as  the  science 
of  international  law.  They  regarded  strangers  and  enemies  as  nearly 
synonymous,  and  considered  foreign  persons  and  property  as  lawful  prize. 
Their  laws  of  war  and  peace  were  barbarous  and  deplorable.  So  little 
were  mankind  accustomed  to  regard  the  rights  of  persons  or  property,  or  to 
perceive  the  beauty  of  public  order,  that,  in  the  most  enlightened  ages  of 
the  Grecian  republics,  piracy  was  regarded  as  an  honourable  employment. 
There  were  powerful  Grecian  states  that  avowed  its  practice ;  and  the 
fleets  of  Athens,  the  best  disciplined  and  most  respectable  naval  force  in 
all  antiquity,  were  exceedingly  addicted  to  piratical  excursions. 

10.  What  was  the  received  opinion  among  the  Greeks  as  to  the  recip- 
rocal  rights   and   duties  of  their  own  cities  and  states  between  them- 
selves ? — 4 


I,EC.  I.]  REDUCED    TO    QUESTIONS   AND    ANSWERS.  11 

That  they  were  bound  to  no  duties,  nor  by  any  moral  law,  without 
compact,  and  that  prisoners  taken  in  war  had  no  rights,  and  might  law- 
fully be  put  to  death,  or  sold  into  perpetual  slavery,  with  their  wives  and 
children.  There  were,  however,  many  feeble  efforts,  and  some  success- 
ful examples  are  to  be  met  with  in  Grecian  history,  in  favour  of  national 
justice.  The  object  of  the  Amphictyonic  council  was  to  institute  a  law  of 
nations  among  the  Greeks,  and  settle  contests  between  Grecian  states  by 
a  pacific  adjustment. 

1 1 .  What  was  the  practice  of  the  Romans,  in  their  intercourse  with 
foreign  states  ? — 5 

They  exhibited  much  stronger  proofs  than  the  Greeks  of  the  influ- 
ence of  regular  law,  and  there  was  a  marked  difference  between  those  na- 
tions in  their  intercourse  with  foreign  powers.  It  was  a  principle  of 
the  Roman  government,  that  none  but  a  sworn  soldier  might  lawfully  fight 
the  enemy.  The  institution  of  the  college  of  heralds  and  the  fecial  law, 
were  proofs  of  a  people  considerably  advanced  in  the  cultivation  of  the 
law  of  nations  as  a  science  ;  and  yet  with  what  little  attention  they  were 
accustomed  to  listen  to  the  voice  of  justice  and  humanity,  appears  but 
too  plainly  in  their  haughty  triumphs,  their  cunning  interpretation  of  trea- 
ties, their  continual  violation  of.  justice,  their  cruel  rules  of  war,  and  the 
whole  series  of  their  wonderful  successes,  in  the  steady  progress  of  the 
conquest  of  the  world. 

12.  What  was  the  Roman  jurisprudence  in  its  most  cultivated  state? — 8 

It  was  a  very  imperfect  transcript  of  the  precepts  of  natural  justice, 
on  the  subject  of  national  duty.  It  retains  strong  traces  of  ancient  rude- 
ness, from  the  want  of  the  Christian  system  of  morals,  and  civilizing  re- 
straints of  commerce  ;  we  find  the  barbarous  doctrine  still  asserted,  that 
prisoners  of  war  became  slaves  jure  gentium,  and  even  in  respect  to  for- 
eign nations  with  whom  the  Romans  were  at  peace,  but  had  no  particu- 
lar alliance,  it  is  laid  down  in  the  digests,  that1  whoever  passed  from  one 
country  to  another,  became  immediately  a  slave. 

13.  What  was  the  state  of  international  law  during  the  early  part  of  the 
middle  ages?  — 8? 

The  irruption  of  the  northern  tribes  of  Scythia  and  Germany,  over- 
turned all  that  was  gained  by  the  Roman  law,  annihilated  every  restraint, 
and  all  sense  of  national  obligation,  and  civil  society  relapsed  into  violence 
and  confusion.  Mankind  seemed  to  be  doomed  to  live  once  more  in  con- 
stant distrust  or  hostility,  and  to  regard  a  stranger  and  an  enemy  as  al- 
most the  same.  Piracy,  rapine,  and  ferocious  warfare,  deformed  the  an- 
nals of  Europe.  The  manners  of  the  nations  were  barbarous,  and  their 
maxims  of  war  cruel. 

14.  What  nations  are  spoken  of  as  early  exceptions  to  this  general  bar- 
barity ? — 8 

The  Visigoths,  Saxons,  Cicilians  and  Bavarians,  whose  laws  are  cited 


12  KENT'S  COMMENTARIES,  £VOL.  i. 

by  Mr.  Barrington,  as  restraining,  by  the  severest  penalties,  the  plunder  of 
shipwrecked  goods,  and  the  abuse  of  shipwrecked  seaman,  and  as  ex- 
tending the  rights  of  hospitality  to  strangers.  But  notwithstanding  a  few 
efforts  of  this  kind  to  introduce  order  and  justice,  and  though  municipal 
law  had  undergone  great  improvement,  the  law  of  nations  remained  in  the 
rudest  and  most  uncultivated  state  down  to  the  period  of  the  16th  century. 

15.  By  what  means  did  the  Emperor  Charlemagne   endeavour  to  im- 
prove the  condition  of  Europe  ? — 9 

By  the  introduction  of  order,  and  the  propagation  of  Christianity; 
and  we  have  cheering  examples,  during  the  darkness  of  the  middle  ages, 
of  some  recognition  of  public  laws,  by  means  of  alliances,  and  the  submis- 
sion of  disputes  to  the  arbitrament  of  a  neutral  power. 

16.  What  five  institutions  are  enumerated  by  Mr.  Ward,  existing  about 
the  period  of  the  llth  century,  and  which  in  a  very  essential  degree  con- 
tributed to  improve  the  lav/  of  nations  ? — 9 

1.  The  feudal  system.  2.  The  concurrence  of  Europe  in  one  form 
of  religious  worship.  3.  The  establishment  of  chivalry.  4.  The  nego- 
tiations and  treaties  forming  the  conventional  law  of  Europe.  5.  The 
settlement  of  a  scale  of  political  rank  and  precedency ;  but  of  all  the 
causes  of  reformation,  the  most  weight  is  to  be  attributed  to  the  intimate 
alliance  of  the  great  powers  as  one  Christian  community. 

17.  What  was  the  influence  of  Christianity  ? — 10 

It  was  very  efficient  toward  the  introduction  of  a  better  and  more 
enlightened  sense  of  right  and  justice  among  the  governments  of  Europe. 
It  taught  the  duty  of  benevolence  to  strangers,  of  humanity  to  the  van- 
quished, of  the  obligation  of  good  faith,  and  of  the  sin  of  murder,  revenge, 
and  rapacity. 

18.  What  were  the  principal  means  by  which  the  church  acquired  and 
exercised  its  authority  ? — 10 

By  its  councils,  or  convocations  of  clergy,  which  formed  the  nations 
professing  Christianity  into  a  connection  resembling  a  federal  alliance  ; 
and  those  councils  sometimes  settled  the  titles  and  claims  of  princes  and 
regulated  the  temporal  affairs  of  the  Christian  powers.  The  confederacy 
of  the  Christian  nations  was  bound  together  by  a  sense  of  common  duty 
and  interest,  in  respect  to  the  rest  of  mankind. 

19.  What  was  then  the  general  principle  of  belief  and  action  ? — 10 

That  it  was  not  only  right,  but  a  duty,  to  reduce  to  obedience,  for  the 
sake  of  conversion,  every  people  who  professed  a  different  faith  from  their 
own.  To  make  war  upon  infidels,  was,  for  many  ages,  a  conspicuous 
part  of  European  law  ;  apd  this  gross  perversion  of  the  doctrines  and 
spirit  of  Christianity,  had  at  least  one  propitious  effect  upon  the  Christian 
powers,  inasmuch  as  it  led  to  the  cultivation  of  peace  and  union  be- 


LIC.    I.J  REDUCED    TO    QUESTIONS    AND    ANSWERS.  13 

tween  them,  and  to  a  more  free  and  civilized  intercourse.  The  notion  that  it 
was  lawful  to  invade  and  subdue  Mahometan  and  pagan  countries,  con- 
tinued very  long  to  sway  the  minds  of  men  ;  and  it  was  not  till  after  the 
age  of  Grotius  and  Bacon,  that  this  error  was  entirely  eradicated.  Lord 
Coke  held,  that  an  alliance  for  mutual  defence  was  unlawful  between 
Christians  and  Turks  ;  and  Grotius  was  very  cautious  as  to  the  admission 
of  the  lawfulness  of  alliances  with  infidels,  and  he  had  no  doubt  that  all 
Christian  nations  were  bound  to  assist  each  other  against  the  attacks  of 
the  infidels.  Even  Lord  Bacon  thought  it  a  matter  of  so  much  doubt,  as 
to  propound  it  seriously  as  a  question,  whether  a  war  with  infidels  was 
not  the  first  in  order  of  dignity,  and  to  be  preferred  to  all  just  temporal 
quarrels  ;  and  whether  a  war  with  infidels  might  not  be  undertaken  mere- 
ly for  the  propagation  of  the  Christian  faith,  without  other  cause  of  hos- 
tility. 

20.  What  influence  had  chivalry  upon  the  laws  of  war  ? — 1 1 

It  introduced  declarations  of  war  by  heralds  ;  and  to  attack  an  ene- 
my by  surprise  was  deemed  cowardly  and  dishonourable.  It  dictated  hu- 
mane treatment  to  the  vanquished,  courtesy  to  enemies,  and  the  virtues  of 
fidelity,  honour,  and  magnanimity,  in  every  species  of  warfare. 

21.  What  influence  had  the  introduction  of  the  civil  law  ? — 11 

It  contributed  largely  to  more  correct  and  liberal  views  of  the  rights 
and  duties  of  nations.  This  grand  monument  of  the  embodied  wisdom  of 
the  ancients,  when  once  known  and  examined,  must  have  reflected  a 
broad  stream  of  light  upon  the  feudal  institutions,  and  the  public  councils 
of  the  European  nations.  We  accordingly  find  that  the  rules  of  the  civil 
law  were  applied  to  the  government  of  national  rights,  and  they  hare 
contributed  very  materially  to  the  erection  of  the  modern  international 
laws  of  Europe.  From  the  13th  to  the  16th  century,  all  controversies  be- 
tween nations  were  adjudged  by  the  rules  of  the  civil  law. 

22.  What  effect  had  treaties,  conventions,  and  commercial  ordinances, 
upon  the  law  of  nations  1  —  12 

They  gave  to  it  a  new  character,  and  rendered  it  more  and  more  a 
positive  or  instituted  code. 

23.  What  was  the  object  of  commercial  ordinances  and  conventions  t 
—12 

To  improTe  and  refine  public  law  and  the  intercourse  of  nations,  by 
protecting  the  persons  and  property  of  merchants  in  cases  of  shipwreck, 
and  against  piracy,  and  against  seizure,  and  arrest  upon  the  breaking  out 
of  war. 

24.  What  is  understood  by  an  auxilliary  treaty  ? — 12 
A  defensive  treaty. 


14  KENT'S  COMMENTARIES,  [VOL.  i. 

25.  What  effect  was  given  to  those  treaties?  — 12 

One  nation  was  allowed  to  be  an  enemy  to  a  certain  extent  only. — 
Thus,  if,  in  time  of  peace,  a  defensive  treaty  had  been  made  between  one 
of  the  parties  to  a  subsequent  war  and  a  third  power,  by  which  a  certain 
number  of  troops  were  to  be  furnished  in  case  of  war,  a  compliance  with 
this  engagement  implicated  the  auxiliary  as  a  party  to  the  war,  only  so 
far  as  her  contingent  was  concerned.  The  nations  of  Europe  had  ad- 
vanced to  this  extent  in  diplomatic  science  so  early  as  the  beginning  of 
the  1 3th  century,  and  such  a  refinement  was  wholly  unknown  to  the  an- 
cients. 

26.  What  was  understoood  by  a  treaty  of  subsidy  ?— 12 

It  was  a  treaty  by  which  the  troops  of  one  nation,  to  a  definite  ex- 
tent, could  be  hired  for  the  service  of  one  of  the  belligerents,  without 
affording  ground  for  hostility  with  the  community  which  supplied  the 
specific  aid. 

27.  What  does  the  efforts  that  were  made  upon  the  revival  of  com- 
merce, to  suppress  piracy,  and  protect  shipwrecked  property,  show  ? — 13 

They  show  a  returning  sense  of  the  value  and  obligations  of  national 
justice.  The  case  of  shipwrecks  may  be  cited  as  a  particular  and  strong 
instance  of  the  feeble  beginnings,  the  slow  and  interrupted  progress,  and 
final  and  triumphant  success,  of  the  principles  of  public  right. 

28.  What  two  emperors  had  the  honour  of  having  first  renounced  their 
claim  to  shipwrecked  property,  in  favour  of  the  owners  1 — 13 

Hadrian  and  Antonius. 

29.  What  contributed  gradually  to  suppress  the  criminal  practice  of 
plundering  or  confiscating  all  shipwrecked  property,  and  of  treating  mari- 
ners, who  were  thus  unfortunate,  as  pirates? — 13 

The  revival  of  commerce,  and  with  it  a  sense  of  the  value  of  order, 
commercial  ordinances,  particular  conventions,  and  treaties  between  sov- 
ereigns, by  rendering  the  regulations  upon  that  subject  a  branch  of  the 
public  law  of  nations. 

30.  To  what  is  imputed  the  progress  of  humanity  in  the  treatment  of 
prisoners  ? — 14 

To  the  influence  of  conventional  law,  establishing  a  general  and  in- 
discriminate exchange  of  prisoners,  rank  for  rank,  and  giving  protection  to 
cartel  ships  for  that  purpose. 

31 .  What  effect  was  produced  by  the  admission  of  resident  ambassadors 
at  each  sovereign's  court  1 — 15 

It  was  an  important  improvement  in  the  security  and  facility  of  na- 
tional intercourse  ;  and  this  led  to  the  settlement  of  a  great  question,  which 


LEC.  II.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  15 

was  frequently  discussed  in  the  15th  and  16th  centuries,  concerning  the 
inviolability  of  ambassadors.  It  became  at  last  to  be  a  definitive  principle 
of  public  law,  that  ambassadors  were  exempt  from  all  local  jurisdiction, 
civil  and  criminal. 


LECTURE    II. 

OF  THE  RIGHTS  AND  DUTIES  OF  NATIONS  IN  A 
STATE  OF  PEACE. 

1.  How   do  nations,   in  a  state  of  peace,  stand  in   relation  to  each 
other  ? — 21 

They  are  equal,  and  entitled  to  claim  equal  consideration  for  their 
rights,  whatever  may  be  their  relative  dimensions  or  strength,  or  however 
greatly  they  differ  in  government,  religion,  or  manners.  This  perfect 
equality,  and  entire  independence  of  all  distinct  states,  is  a  fundamental 
principle  of  public  law.  It  is  a  necessary  consequence  of  this  equality, 
that  each  nation  has  a  right  to  govern  itself  as  it  may  think  proper,  and  no 
one  nation  is  entitled  to  dictate  a  form  of  government,  or  religion,  or  a 
course  of  internal  policy,  to  another.  No  state  is  entitled  to  take  cogni- 
zance or  notice  of  the  domestic  administration  of  another  state,  or  of  what 
passes  within,  as  between  the  government  and  its  own  subjects. 

2.  What  circumstances  may  justify  an  interference  ? — 23 

An  impending  danger  arising  from  the  domestic  policy  of  another 
state.  A  rational  fear  is  said  to  be  a  justifiable  cause  of  war.  The  dan- 
ger must  be  great,  distinct,  and  imminent,  and  not  rest  on  vague  and  uncer- 
tain suspicion.  The  British  government  officially  declared  to  the  allied 
powers  in  1821,  that  no  government  was  more  prepared  than  their  own, 
"  to  uphold  the  right  of  any  state  or  states  to  interfere  where  their  own 
security  or  essential  interests  were  seriously  endangered  by  the  internal 
transactions  of  another  ; — that  the  assumption  of  the  right  was  only  to  be 
justified  by  the  strongest  necessity,  and  to  be  limited  and  regulated  there- 
by;— that  it  could  not  receive  a  general  and  indiscriminate  application  to 
all  revolutionary  movements,  without  reference  to  their  immediate  bearing  • 
upon  some  particular  state  or  states  ; — that  its  exercise  was  an  exception 
to  general  principles  of  the  greatest  value  and  importance,  and  as  one  that 
only  properly  grows  out  of  the  circumstances  of  the  special  case  ;  and  ex- 
ceptions of  this  description  could  never,  without  the  utmost  danger,  be  so 
far  reduced  to  rule,  as  to  be  incorporated  into  the  ordinary  diplomacy  of 
states,  or  into  the  institutes  of  the  law  of  nations."  No  form  of  civil  gov- 


16  KENT'S  COMMENTARIES,  [VOL.  i. 

eminent  which  a  nation  may  think  proper  to  prescribe  for  itself,  can  be 
admitted  to  create  a  case  of  necessity,  justifying  an  interference  by  force. 

3.  How  are  treaties  affected  by  a  change  of  government  ? — 25 

It  is  well  understood  that  treaties  are  not  affected,  nor  positive  obli- 
gations of  any  kind  with  other  powers,  or  creditors,  weakened  by  any  such 
mutations.  A  state  neither  loses  any  of  its  rights,  nor  is  discharged  from 
any  of  its  duties,  by  a  change  of  government. 

4.  What  if  a  state  be  divided  in  respect  to  territory  ? — 25 

Its  rights  and  obligations  are  not  impaired  ;  and  if  they  have  not  been 
apportioned  by  special  agreement,  those  rights  are  to  be  enjoyed,  and  those 
obligations  fulfilled,  by  all  the  parts  in  common. 

5.  What  extent  of  jurisdiction  may  a  nation  exercise  over  adjoining 
seas  1—26 

That  is  often  a  difficult  question,  and  of  dubious  right.  As  far  as  a 
nation  can  occupy,  and  that  occupancy  is  acquired  by  prior  possession  or 
treaty,  the  jurisdiction  is  exclusive.  Navigable  rivers  which  flow  through 
a  territory,  and  the  sea-coast  adjoining  it,  and  navigable  waters  included 
in  bays  and  between  headlands  and  arms  of  the  sea,  belong  to  the  sover- 
eign of  the  adjoining  territory.  The  open  sea  is  not  capable  of  being  pos- 
sessed as  private  property. 

6.  How  does  the  law  of  nations  regard  the  freedom  of  trade  ? — 32 

As  an  imperfect  right,  and  necessarily  subject  to  such  regulations  and 
restrictions,  as  each  nation  may  think  proper  to  prescribe  for  itself.  Every 
state  may  monopolize  as  much  as  it  pleases  of  its  own  internal  and  colo- 
nial trade,  or  grant  to  other  nations,  with  whom  it  deals,  such  distinctions 
and  particular  privileges  as  it  may  deem  conducive  to  its  interest. 
/ 

7.  How  far  does  the  right  to  make  commercial  treaties  extend  ?— 34 

Every  nation  may  enter  into  such  commercial  treaties,  and  grant 
such  special  privileges  as  they  may  think  proper ;  and  no  nation  to  whom 
the  like  privileges  are  not  conceded,  has  a  right  to  take  offence,  provided 
those  treaties  do  not  affect  their  perfect  rights.  A  state  may  enter  into  a 
treaty,  by  which  it  grants  exclusive  privileges  to  one  nation,  and  deprives 
itself  of  the  liberty  to  grant  similar  privileges  to  any  other. 

8.  What  is  the  law  of  nations,  upon  the  right  of  passage  over  foreign 
*  territory  ?—  34 

That  every  nation  is  bound  in  time  of  peace  to  grant  a  passage  for 
lawful  purposes,  over  their  lands,  rivers,  and  seas,  to  the  people  of  other 
states,  whenever  it  can  be  permitted  without  inconvenience  ;  and  burthen- 
some  conditions  ought  not  to  be  annexed  to  the  transit  of  persons  and 
property.  If,  however,  the  government  deems  the  introduction  of  foreign- 


LEC.  II.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  17 

ers,  or  their  merchandise,  injurious  to  those  interests  of  their  own  people, 
which  they  are  bound  to  protect  and  promote,  they  are  at  liberty  to  with- 
hold the  indulgence.  The  entry  of  foreigners  and  their  effects  is  not  an 
absolute  right,  but  only  one  of  imperfect  obligation,  and  it  is  subject  to  the 
discretion  of  the  government  which  tolerates  it. 

9.  What  if  a  nation  possess  only  the  upper  parts  of  a  navigable  river  ? 
—35 

She  is  entitled  to  descend  to  the  sea  without  being  embarrassed  with 
useless  and  oppressive  duties  or  regulations.  It  is  doubtless  a  right  of  an 
imperfect  obligation,  but  one  that  cannot  justly  be  withheld  without  good 


10.  What  is  the  opinion  as  to  the  obligation  of  states  to  deliver  up  crimi- 
nals fleeing  from  justice  ? — 36 

It  is  declared  by  some  of  the  most  distinguished  public  jurists,  that 
every  state  is  bound  to  deny  an  asylum  to  criminals,  and  upon  application 
and  due  examination  of  the  case,  to  surrender  the  fugitive  to  the  foreign 
state  where  the  crime  was  committed.  It  is  the  duty  of  government  to 
surrender  up  fugitives  upon  demand  after  the  civil  magistrate  shall  have 
ascertained  the  existence  of  reasonable  grounds  for  the  charge,  and  suffi- 
cient to  put  the  accused  upon  his  trial.  The  guilty  cannot  be  tried  and 
punished  by  any  other  jurisdiction  than  the  one  whose  laws  have  been 
violated. 

The  only  difficulty  in  the  absence  of  positive  agreement,  consists  in 
drawing  the  line  between  the  class  of  offences  to  which  the  usage  of  na- 
tions does,  and  to  which  it  does  not  apply,  inasmuch  as  it  is  understood 
in  practice,  to  apply  only  to  crimes  of  great  atrocity,  or  deeply  affecting 
the  public  safety. 

P.  Voet.  de  statutis,p.  297,  says,  that  the  surrender  of  criminals  is  de- 
nied according  to  the  usage  of  almost  all  Christian  nations,  except  in  cases 
of  humanity.  Some  foreign  jurists  hold  that  crimes  committed  in  one 
state,  may,  if  the  criminal  be  found  in  another  state,  be,  upon  demand, 
punished  there. 

11.  Why  are  ambassadors  allowed  to  form  an  exception  to  the  general 
case  of  foreigners  resident  in  the  country  ? — 38 

By  reason  of  their  being  the  representatives  of  their  sovereigns,  and 
requisite  for  negotiations  and  friendly  intercourse. 

12.  What  if  ambassadors  insult,  or  openly  attack  the  laws   or  govern- 
ment of  the  nation  to  whom  they  are  sent  ? — 38 

Their  functions  may  be  suspended  by  a  refusal  to  treat  with  them, 
or  application  can  be  made  to  their  own  sovereign  for  their  recall,  or  they 
may  be  dismissed  and  required  to  depart  within  a  reasonable  time  ;  and 
every  government  has  a  right  to  judge  for  itself,  whether  the  language  or 
conduct  of  a  foreign  minister  is  admissible.  The  writers  on  public  law 
go  still  further,  and  allow  force  to  be  applied  to  confine  or  send  away  an 
3 


18  KENT'S  COMMENTARIES,  [VOL.  1, 

ambassador,  when  the  safety  of  the  state,  which  is  superior  to  all  other 
considerations,  absolutely  requires  it.  This  is  all  that  can  be  done,  for 
ambassadors  cannot,  in  any  case,  be  made  amenable  to  the  civil  or  crimi- 
nal jurisdiction  of  the  country. 

13.  To  what  does  the  distinction,  between  ambassadors,  ministers  pleni- 
potentiary, envoys  extraordinary,  and  resident  ministers,  relate? — 39 

Only  to  diplomatic  precedence  and  etiquette,  and  not  to  their  essen- 
tial powers  and  privileges. 

14.  Maya  government  refuse  to  receive  an  ambassador  or  minister? 
—40 

It  may,  and  without  affording  any  just  cause  of  war,  though  the  act 
would,  probably,  excite  unfriendly  dispositions,  unless  accompanied  with 
conciliatory  explanations. 

15.  How  far  is  a  government  bound  by  an  act  of  its  minister  ? — 40 

This  will  depend  upon  the  nature  and  terms  of  his  authority.  It  is 
now  the  usual  course  for  every  government  to  reserve  to  itself  the  right  to 
ratify  or  dissent  from  the  treaty  agreed  to  by  its  ambassador.  A  general 
letter  of  credence  is  the  ordinary  letter  of  attorney,  or  credential  of  the 
minister ;  and  it  is  not  understood  to  confer  a  power  upon  the  minister 
to  bind  his  sovereign  conclusively. 

16.  What  are  consuls  ?— 41 

Commercial  agents,  appointed  to  reside  in  the  seaports  of  foreign 
countries,  with  a  commission  to  watch  over  the  commercial  rights  and 
privileges  of  the  nation  deputing  them. 

17.  At  what  time  were  consuls  first  appointed  ? — 41 

About  the  12th  century,  in  the  opulent  states  of  Italy,  such  as  Pisa, 
Lucca,  Genoa,  and  Venice. 

18.  Are  nations  bound  to  receive  foreign  consuls  ?— 43 

Not  unless  they  have  agreed  to  do  so  by  treaty;  and  a  refusal  is  no 
violation  of  the  peace  and  amity  between  nations. 

19.  Are  consuls  considered  as  public  ministers  ?— 43 

Not  so  as  to  be  entitled  to  the  privileges  appertaining  to  that  charac- 
ter,  nor  are  they-under  the  special  protection  of  the  law  of  nations. 


LEC.    III.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  19 


LECTURE  III. 

OF  THE  DECLARATION  AND  OTHER  EARLY  MEA- 
SURES OF  A  STATE  OF  WAR. 

1.  What  amounts  to  a  just  cause  of  war  ?— 48 

An  injury,  either  done  or  threatened,  to  the  perfect  rights  of  a  nation, 
or  any  of  its  members,  and  susceptible  of  no  other  redress.  War  is  not  to 
be  resorted  to  without  absolute  necessity,  nor  unless  peace  would  be  more 
dangerous  and  more  miserable  than  war  itself. 

2.  What  is  the  rule  where  one  nation  is  bound  by  treaty  to  afford  as- 
sistance, in  a  case  of  war  between  its  ally  and  a  third  power  ? — 49 

The  assistance  is  to  be  given  whenever  the  casusfoederis  occurs  ;  but 
a  question  will  sometimes  arise  whether  the  government  which  is  to  af- 
ford the  aid,  is  to  judge  for  itself  of  the  justice  of  the  Mrar  on  the  part  of 
the  ally  ;  and  to  make  the  right  to  assistance  depend  upon  its  own 
judgment. 

Grotius  is  of  opinion,  that  treaties  of  that  kind  do  not  oblige  us  to  parti- 
cipate in  a  war,  which  appears  to  be  manifestly  unjust  on  the  part  of  the 
ally;  and  it  is  said  to  be  a  tacit  condition  annexed  to  every  treaty  made 
in  peace,  and  stipulating  to  afford  succours  in  war,  that  the  stipulation  is 
only  to  apply  to  a  just  war.  To  give  assistance  to  an  unjust  war,  on  the 
ground  of  the  treaty,  would  be  contracting  an  obligation  to  do  injustice, 
and  no  such  contract  is  valid. 

3.  What  if  to  grant  the  succour  stipulated  would  expose  the  state  grant- 
ing to  imminent  danger  1 — 50 

A  nation  which  has  agreed  to  render  assistance  to  another,  is  not 
obliged  to  furnish  it  when  the  case  is  hopeless.  Such  extreme  cases  are 
tacit  exceptions  to  the  obligation  of  the  treaty  ;  but  the  danger  must  not 
be  slight,  remote,  or  contingent,  for  this  would  be  to  seek  a  frivolous  cause 
to  violate  a  solemn  engagement. 

4.  In  what  case  is  not  the  contract  to  furnish  assistance  in  a  defensive 
alliance,  obligatory  upon  the  parties  ? — 50 

The  condition  of  the  contract  does  not  call  for  assistance  unless  the  iflfc 
ally  be  engaged  in  a  defensive  war,  for  in  a  defensive  alliance  the  nation 
engages  only  to  defend  its  ally,  in  case  he  be  attacked,  and  even  then  we 
are  to  inquire  whether  he  be  not  justly  attacked.  The  defensive  alliance 
applies  only  to  a  war  first  commenced  in  point  of  fact  against  the  ally; 
and  the  power  that  first  declares,  or  actually  begins  the  war,  makes  what 
is  deemed,  in  the  conventional  law  of  nations,  an  offensive  war. 


20  KENT'S  COMMENTARIES,  [VOL.  r. 

5.  With  whom  resides  the  right  to  declare  war? — 51 

In  ancient  Greece  and  Italy,  the  right  of  declaring  war  resided 
with  the  people,  who  retained,  in  their  collective  capacity,  the  exercise  of 
a  large  portion  of  sovereign  power.  Among  the  ancient  Germans  it  be- 
longed also  to  popular  assemblies.  But  in  the  monarchies  of  Europe, 
which  arose  upon  the  ruins  of  the  feudal  system,  this  important  preroga- 
tive was  generally  assumed  by  the  king.  Many  publicists  consider  the 
power  as  a  part  of  the  sovereign  authority  of  the  state,  of  which  the  legis- 
lative department  is  an  essential  branch.  There  are,  however,  several 
exceptions  to  this  general  position ;  for  in  the  limited  monarchies 
of  England,  France,  and  Holland,  the  king  alone  declares  war.  In  these 
United  States  the  power  to  declare  war  is  confided  to  the  legislature  of 
the  Union. 

6.  What  effect  has  a  war,  duly  declared,  upon  the  private  citizens  of 
the  belligerent  parties  ? — 55 

Every  man  is,  in  judgment  of  law,    a  party  to  the  acts  of  his  own 

'  government,  and  a  war  between  the  governments  of  two  nations,  is  a  war 

between  all  the  individuals  of  the  one,  and  all  the  individuals  of  which 

the  other  nation  is  composed.     Government  is  the  representative  of  the 

will  of  all  the  people,  and  acts  for  the  whole  society. 

7.  What  is  the  rule  as  to  the  capture  of  enemy's  property  found  within 
the  territory  upon  t  he  breaking  out  of  war  ? — 56 

According  to  strict  authority,  a  state  has  a  right  to  deal  as  an  enemy 
with  persons  and  property  so  found  within  its  power,  and  to  confiscate  the 
property,  and  to  detain  the  persons  as  prisoners  of  war.  No  one,  says 
Bynkershoeck,  ever  required  that  notice  should  be  given  to  the  subjects 
of  the  enemy  to  withdraw  their  property,  or  it  would  be  forfeited.  The 
practice  of  nations  is  to  appropriate  it  at  once,  without  notice,  if  there  be 
no  special  convention  to  the  contrary.  But,  though  Bynkershoeck  lays 
down  this,  as  well  as  other  rules  of  war,  with  great  harshness  and  severi- 
ty, he  mentions  several  instances  arising  in  the  17th,  arid  one  as  early  as 
the  15th  century,  of  stipulations  in  treaties,  allowing  foreign  subjects  a 
reasonable  time  after  a  war  breaks  out,  to  recover  and  dispose  of  their  ef- 
fects, or  to  withdraw  them.  Such  stipulations  have  now  become  an  estab- 
lished formula  in  commercial  treaties. 

8.  What  is  the  effect  of  an  embargo  ? — 60 

It  is  an  implied  declaration  of  war,  though  liable  to  be  explained 
'  away  and  annulled  by  a  subsequent  accommodation  between  the  nations. 
The  seizure  is  at  first  an  act  equivocal  as  to  the  effect,  though  hostile  in 
the  mere  execution,  and  if  the  matter  in  dispute  terminates  in  reconcilia- 
tion, the  seizure  becomes  a  mere  civil  embargo;  but  if  it  terminate  other- 
wise, the  subsequent  hostilities  have  a  retroactive  effect,  and  render  the 
embargo  a  hostile  measure  ab  initio.  The  property  detained  is  deemed 
enemy's  property,  and  liable  to  condemnation. 


LEG.   III.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  21 

9.  In  what  case  may  letters  of  marque  and  reprisal  be  granted,  accord- 
ing to  the  law  of  nations  ? — 61 

When  one  nation  has  committed  some  direct  or  palpable  injury  to 
another,  as  by  withholding  a  just  debt,  or  by  violence  to  persons  or  pro- 
perty, and  has  refused  to  give  any  satisfaction.  The  reprisals  may  be 
made  in  support  of  the  rights  of  a  subject  as  well  as  for  those  of  the  sove- 
reign. The  commission  is  not  to  be  issued  except  in  a  case  clearly  just. 

10.  What  is  the  law  as  to  the  right  to  confiscate  debts,  contracted  by 
individuals  in  time  of  peace,  and  which  remain  due  to  subjects  of  the  ene- 
my at  the  declaration  of  war  ? — 62 

In  former  times  the  right  to  confiscate  debts  was  admitted  as  a  doc- 
trine of  nationallaw, and  Grotius,  PufTendorffand  Bynkershoeck  pronounced 
in  favour  of  it.  Down  to  the  year  1737,  the  general  opinion  of  jurists 
was  in  favour  of  the  right ;  but  Vattel  says,  that  a  relaxation  of  the  rigour  of 
the  rule  has  since  taken  place  among  the  sovereigns  of  Europe.  There 
has  frequently  been  a  stipulation  in  modern  treaties,  that  debts  should  not 
be  confiscated  in  the  event  of  war.  The  treaties  between  the  United 
States  and  Colombia  in  1  825,  and  Chili  in  1 832,  contain  such  a  provision  ; 
but  the  treaty  between  the  United  States  and  Great  Britain  in  1795,  went 
further,  and  contained  the  explicit  declaration  that  it  was  "unjust  and  im- 
politic "  that  debts  of  individuals  should  be  impaired  by  national  dif- 
ferences. 

11.  What  if  property  have  been  wrongfully  taken  by  the  state  before  the 
war,  and  be  in  the  country  at  the  opening  of  the  war  ? — 65 

Such  property  cannot  be  seized,  but  must  be  restored. 

12.  What  is  the  rule  as  to  trading  with  the  enemy? — 66 

That  the  declaration  of  war  is  an  absolute  interruption  and  interdic- 
tion of  all  commercial  correspondence,  intercourse,  and  dealing  between 
subjects  of  the  two  countries.  This  is  equally  the  doctrine  of  all  the  au- 
thoritative writers  on  the  law  of  nations,  and  the  maritime  ordinances  of 
the  great  powers  of  Europe,  and  the  received  law  of  this  country. 

13.  What  is  the  rule  as  to  contracts  made  with  the  enemy  ?— 67 

They  are  utterly  void.  The  insurance  of  enemy's  property  is  an  il- 
legal contract.  The  drawing  of  a  bill  of  exchange  by  an  alien  enemy,  on 
a  subject  of*the  adverse  country,  is  an  illegal  contract.  The  remission 

of  funds,  in  money  or  bills,  to  subjects  of  the  enemy,  is  unlawful. 

» 

14.  What  are  the  rules  governing  ships  of  war  and  cartel  ships  ? — 68 

The  same  interdiction  applies  to  them,  and  therefore  all  trade,  by 
means  of  such  vessels,  is  unlawful,  without  the  consent  of  both  govern- 
ments concerned.  1 1  is  equally  illegal  for  an  ally  of  one  of  the  belligerents, 
and  who  carries  on  the  war  conjointly,  to  have  any  commerce  with  the 


22  KENT'S  COMMENTARIES,  [VOL.  i. 

enemy.  A  single  belligerent  may  grant  licenses  to  trade  with  the  enemy, 
and  dilute  and  weaken  his  own  rights  at  pleasure,  but  it  is  otherwise  when 
allied  nations  are  pursuing  a  common  cause. 


LECTURE    IV. 

OF  THE  VARIOUS  KINDS   OF  PROPERTY  LIABLE  TO 

CAPTURE. 

1.  Into  what  two  classes  are  alien  enemies  distinguished  ? — 72 

Into  permanent  and  temporary.  A  man  is  said  to  be  permanently  an 
,  alien  enemy,  when  he  owes  a  permanent  allegiance  to  the  adverse  bellige- 
rent. But  he  who  does  not  owe  a  permanent  allegiance  to  the  enemy,  is 
an  enemy  only  during  the  existence  and  continuance  of  certain  circum- 
stances. Possession  of  the  soil  impresses  upon  the  owner  the  character  of 
the  country,  so  far  as  the  products  of  the  soil  are  concerned,  wherever  the 
local  residence  of  the  owner  may  be.  The  produce  of  a  soil  bears  a  hos- 
tile character  for  the  purpose  of  capture,  and  is  the  subject  of  legitimate 
prize,  when  taken  in  the  course  of  transportation  to  any  other  country. 

2.  What  if  a  person  have  a  settlement  in  a  hostile  country  by  the  main- 
tenance of  a  commercial  establishment  there  ? — 74 

He  will  be  considered  a  hostile  character,  and  a  subject  of  the  enemy, 
in  regard  to  his  commercial  transactions  connected  with  that  establishment. 

3.  What  facts  are  requisite  to  constitute  a  commercial  domicil  ? — 76 

It  has  been  a  question  admitting  of  much  discussion  and  difficulty, 
arising  from  the  complicated  character  of  commercial  speculations.  The 
animus  manendi  appears  to  have  been  the  point  to  be  settled.  The  pre- 
sumption arising  from  actual  residence  in  any  place,  is,  that  the  party  is 
animo  manendi,  and  it  lies  upon  him  to  remove  the  presumption.  If  the 
intention  to  establish  a  permanent  residence  be  ascertained,  the  recency 
of  the  establishment,  though  it  may  have  been  for  a  day  only,  is  immaterial. 

f       4.^What  is  the  rule  in  Asia  and  Africa? — 77 

An  immiscible  character  is  kept  up,  and  Europeans  trading  under  the 
protection  of  a  factory,  take  the  national  character  of  the  establishment  un- 
der which  they  live  and  trade. 

5.  What  if  a  person  having  his  domicil  in  a  neutral  country,  connects 


LEC.  IV.]  REDUCED    TO    QUESTIONS   AND    ANSWERS.  23 

himself  with  a  house  of  trade  in  the  enemy's  country,  in  time  of  war,  or 
continues,  during  war,  a  connexion  formed  in  time  of  peace  ?— 80 

He  is  considered  as  impressed  with  a  hostile  character,  in  reference 
to  so  much  of  his  commerce  as  may  be  connected  with  that  establishment. 
The  rule  is  the  same  whether  he  maintains  the  establishment  as  a  partner 
or  a  sole  trader. 

6.  What  if  there  be  a  partnership  between  two  persons,  the  one  residing 
in  a  neutral,  and  the  other  in  a  belligerent  country  ? — 81 

The  trade  of  one  of  them,  with  the  enemy,  will  be  held  lawful,  and 
that  of  the  other  unlawful ;  and,  consequently,  the  share  of  one  partner  in 
the  joint  traffic  will  be  condemned,  while  the  other  will  be  restored. 

7.  What  is  the  rule  as  regards  the  colonial  trade  of  the  enemy  ? — 81 

That  a  special  license,  granted  by  a  belligerent  to  a  neutral  vessel,  to 
trade  to  her  colony,in  those  branches  of  commerce  which  were  before  con- 
fined to  native  subjects,  will  warrant  the  presumption  that  such  vessel  is 
adopted  and  naturalized,  or  that  such  permission  was  granted  in  fraud  of 
the  belligerent  right  of  capture,  and  the  property  so  covered  may  reasona- 
bly be  regarded  as  enemy's  property. 

8.  What  is  the  effect  of  sailing  under  the  flag  and  pass  of  the  enemy  ? 
-85 

The  English  rule  is,  to  hold  the  ship  bound  by  the  character  imposed 
upon  it  by  the  authority  of  the  government  from  which  all  the  documents 
issue.  But  goods  which  have  no  such  dependence  upon  the  authority  of 
the  state,  may  be  differently  considered  ;  and  if  the  cargo  be  laden  in 
time  of  peace,  though  documented  as  foreign  property,  in  the  same  manner 
as  the  ship,  the  sailing  under  a  foreign  flag  and  pass  has  not  been  held 
conclusive  as  to  the  cargo.  The  doctrine  of  the  courts  in  this  country  has 
been  very  strict  on  this  point,  and  it  has  been  very  frequently  decided,  that 
sailing  under  the  license  and  passport  of  protection  of  the  enemy,  in 
furtherance  of  his  views  and  interests  was,  without  regard  to  the  object  of 
the  voyage,  or  the  port  of  destination,  such  an  act  of  illegality  as  to  sub- 
ject both  ship  and  cargo  to  confiscation  as  prize  of  war. 

9.  What  is  the  law  concerning  property  in  transitu  ? — 86 

That  property  which  has  a  hostile  character  at  the  commencement 
of  the  voyage,  cannot  change  that  character  by  assignment  while  it  is  in 
transitu,  so  as  to  protect  it  from  capture.  During  peace,  a  transfer  in  tran- 
situ may  be  made. 

10.  What  if  property  be  shipped  from  a  neutral  to  an  enemy's  country, 
under  a  contract  to  become  the  property  of  the  enemy  upon  arrival  ? — 86 

It  may  be  taken  in  transitu  as  enemy's  property  ;  for  capture  is  con- 
sidered as  delivery. 


24  KENT'S  COMMENTARIES,  [VOL.  r. 


LECTURE    V. 

OF  THE  RIGHTS  OF  BELLIGERENT  NATIONS  IN 
RELATION  TO  EACH  OTHER. 

1.  What  is  the  rule  as  to  the  right* to  plunder  by  land  and  sea  ? — 91 

There  is  a  marked  difference  in  the  rights  of  war  carried  on  by  land 
and  at  sea.  The  object  of  a  maritime  war  is  the  destruction  of  the  enemy's 
commerce  and  navigation,  in  order  to  weaken  and  destroy  the  foundations 
of  his  naval  power.  The  capture  or  destruction  of  private  property  is  es- 
sential to  that  end  ;  and  it  is  allowed  in  maritime  wars  by  the  law  and 
practice  of  nations.  But  there  are  a  great  many  limitations  imposed  upon 
the  operations  of  war  by  land,  though  depredations  upon  private  property, 
and  despoiling  and  plundering  the  enemy's  territory  are  still  too  prevalent. 
Such  conduct  has  been  condemned  in  all  ages  by  the  wise  and  virtuous, 
and  is  usually  severely  punished  by  those  commanders  of  disciplined 
troops,  who  have  studied  war  as  a  science,  and  are  animated  by  a  sense 
of  duty,  or  the  love  of  fame.  Vattel  condemns  very  strongly  the  spoliation 
of  a  country  without  palpable  necessity;  and  he  speaks  with  a  just  indig- 
nation of  the  burning  of  the  Palatinate  by  Turenne,  under  the  cruel  in- 
structions of  Louvois,  the  war  minister  of  Louis  XIV.  The  general  usage 
now  is,  not  to  touch  private  property  upon  land,  without  making  compen- 
sation, unless  in  special  cases,  dictated  by  the  necessary  operations  of  war, 
or  when  captured  in  places  carried  by  storm,  and  which  repelled  all  the 
overtures  for  a  capitulation.  Contributions  are  sometimes  levied  upon  a 
conquered  country,  in  lieu  of  confiscation  of  property,  and  as  some  indem- 
nity for  the  expense  of  maintaining  order  and  affording  protection. 

2.  What  is  the  law  concerning  retaliation  ? — 93 

That  retaliation,  to  be  just,  ought  to  be  confined  to  the  guilty  indi- 
viduals who  may  have  committed  some  enormous  violation  of  public  law. 

3.  When  were  commissions  to  cruise  first  held  necessary  ? — 95 

It  was  not  until  the  15th  century  that  subjects  were  forbidden  to  cruise 
against  enemies  without  a  license.  Vessels  are  now  fitted  out  and  equip- 
ped by  private  adventurers  at  their  own  expense,  to  cruise  against  the 
common  enemy.  They  are  duly  commissioned,  and  it  is  said  not  to  be 
lawful  to  cruise  without  a  regular  commission. 

4.  What  if  vessels  do  cruise  without  a  commission  ? — 95 

If  they  depredate  upon  the  enemy  without  a  commission,  they  act 
upon  their  peril,  and  are  liable  to  be  punished  by  their  own  sovereign  ; 
but  the  enemy  are  not  warranted  to  consider  them  as  criminals,  and,  as 
respects  the  enemy,  they  violate  no  right  by  capture. 


LEC.    V.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  25 

5.  How  far  are  the  owners  and  officers  of  private  armed  vessels  liable 
in  damages,  for  illegal  conduct? — 99 

The  rule  is  liable  to  the  modifications  of  municipal  regulations. — 
Bynkershoeck  has  discussed  the  question  quite  at  large,  and  he  concludes 
that  the  owner,  master,  and  sureties,  are  jointly  and  severally  liable,  in  so- 
lido,  for  the  damages  incurred.  The  French  law  of  prize  was  formerly 
the  same  as  the  rule  laid  down  by  Bynkershoeck  ;  yet  the  new  commer- 
cial code  of  France  exempts  the  owners  of  private  armed  vessels  in  time 
of  war  from  responsibility  for  trespasses  at  sea,  beyond  the  amount  of  the 
security  they  may  have  given,  unless  they  were  accomplices  in  the  tort. 
The  English  statute,  7  Geo.  II.  c.  15,  is  to  the  same  effect,  in  respect  to 
embezzlements  in  the  merchants'  service.  It  limits  the  responsibility  to  the 
amount  of  the  vessel  and  freight,  but  it  does  not  apply  to  privateers  in  time 
of  war,  and  where  there  is  no  positive  local  law  on  the  subject,  (and  there 
is  none  with  us,)  the  general  principle  is,  that  the  liability  is  commensu- 
rate with  the  injury. 

6.  What  is  the  law  upon  the  subject  of  foreign  commissions  ? — 100 

Vattel  holds  it  to  be  inexcusable  and  base,  for  an  individual  to  take 
a  commission  from  a  foreign  prince,  to  prey  upon  the  subjects  of  a  state 
in  amity  with  his  native  country.  The  laws  of  the  United  States  have 
made  ample  provision  on  this  subject,  and  they  may  be  considered  as  in 
affirmance  of  the  law  of  nations,  and  as  prescribing  specific  punishment 
for  acts  which  were  before  unlawful.  An  act  of  congress  prohibits  citi- 
zens to  accept,  within  the  jurisdiction  of  the  United  States,  a  commission, 
or  for  any  person,  not  transiently  within  the  United  States,  to  consent  to 
be  retained,  or  enlisted,  to  serve  a  foreign  state  in  war  against  a  govern- 
ment in  amity  with  us.  It  likewise  prohibits  American  citizens  from  be- 
ing concerned,  without  the  limits  of  the  United  States,  in  fitting  out,  or 
otherwise  assisting,  any  private  vessel  of  war,  to  cruise  against  the  sub- 
jects of  friendly  powers. 

7.  What  if  a  vessei  have  a  commission  from  two  different  powers  ?  — 100 

The  better  opinion  is,  that  she  is  liable  to  be  treated  as  a  pirate  ;  for 
though  the  two  powers  may  be  allies,  yet  one  of  them  may  be  in  amity 
with  a  state  with  whom  the  other  is  at  war. 

8.  What  is  the  law  governing  prizes  ? — 101 

That  the  right  to  all  captures  vests  primarily  in  the  sovereign,  and  no 
individual  can  have  any  interest  in  a  prize,  whether  made  by  a  public  or 
private  armed  vessel,  but  what  he  receives  under  the  grant  of  the  state. 
But  the  general  practice  under  the  laws  and  ordinances  of  belligerent 
governments,  is,  to  distribute  the  proceeds  of  captured  property,  when  duly 
passed  upon,  and  condemned  as  prize,  (and  whether  captured  by  public  or 
private  commissioned  vessels)  among  the  captors,  as  a  reward  for  bravery, 
and  to  stimulate  exertion. 
4 


26  KENT'S  COMMENTARIES,  [VOL.  i, 

9.  By  what  means  only,  can  prizes  taken  at  sea,  become  vested  in  the 
captors  ?— 102 

By  judicial  inquiry ;  and  the  present  'enlightened  practice  of  the  com- 
mercial nations,  has  subjected  all  such  captures  to  the  scrutiny  of  judicial 
tribunals,  as  the  only  sure  way  to  furnish  due  proof  that  the  seizure  was 
lawful.  The  property  is  not  changed  in  favour  of  a  neutral  vendee,  or  re- 
captor,  so  as  to  bar  the  original  owner,  until  a  regular  sentence  of  con- 
demnation has  been  pronounced  by  some  court  of  competent  jurisdiction, 
belonging  to  the  sovereign  of  the  captor  ;  and  the  purchaser  must  be  able 
to  show  documentary  evidence  of  the  fact,  to  support  his  title. 

10.  May  the  prize  court  of  the  csiptor  sit  in  the  territory  of  an  ally  ? — 103 

It  may  not.  Neutral  ports  are  not  intended  to  be  auxiliary  to  the 
operations  of  the  powers  at  war,  and  the  law  of  nations  has  clearly  ordained 
that  a  prize  court  of  a  belligerent  captor  cannot  exercise  jurisdiction  in  a 
neutral  country. 

11.  May  a  prize  court  exercise  jurisdiction  over  prizes  lying  in  a  neu- 
tral port?— 104 

It  may. 

12.  How  do  the  prize  courts  consider  a  ransom  bill  ?  — 104 

As  a  war  contract,  protected  by  good  faith  and  the  law  of  nations  ; 
and  notwithstanding  that  the  contract  is  considered  in  England  as  tending 
to  relax  the  energy  of  war,  and  deprive  cruisers  of  the  chance  of  re-cap- 
ture, it  is  in  many  views  highly  reasonable  and  humane.  Other  maritime 
nations  regard  ransoms  as  binding,  and  to  be  classed  among  the  few 
legitimate  commercia  balli.  They  have  never  been  prohibited  in  this  country, 

13.  What  is  the  effect  of  a  ransom?  — 105 

It  is  equivalent  to  a  safe  conduct  granted  by  the  authority  of  the 
state  to  which  the  captor  belongs,  and  it  binds  the  commanders  of  other 
cruisers  to  respect  the  safe  conduct  thus  given.  The  safe  conduct  implied 
in  the  ransom  bills,  requires  that  the  vessel  should  be  found  within  the 
course  prescribed,  and  within  the  time  limited  by  the  contract,  unless 
forced  out  of  her  course  by  stress  of  weather,  or  unavoidable  necessity. 

14.  What  if  the  ransomed  vessel  perishes  by  a  peril  of  the  sea,  before 
arrival  in  port  ? — 105 

The  ransom  is,  nevertheless,  due,  for  the  captor  has  not  insured  the 
prize  against  the  perils  of  the  sea,  but  only  against  re-capture  by  cruisers 
of  his  own  nation,  or  the  allies  of  his  country. 

15.  What  was  the  jus  postliminii  of  the  Romans  ? — 108 

It  was  a  fiction  of  law  by  which  persons  or  things  taken  from  the 
enemy,  were  restored  again  to  their  former  state,  upon  coming  again  un- 


LEC.   VI.]  REDUCED    TO    QUESTIONS  AND    ANSWERS.  27 

der  the  power  of  the  nation  to  which  they  formerly  belonged.  It  is  a 
right  recognised  by  the  law  of  nations,  and  contributes  essentially  to  miti- 
gate the  calamities  of  war. 

16.  What  if  a  captor  bring  his  prisoners  into  a  neutral  port?  — 109 

He  may,  perhaps,  confine  them  on  board  his  ship,  as  being  by  fiction 
of  law  part  of  the  territory  of  his  sovereign,  but  he  has  no  control  over 
them  on  shore. 


LECTURE    VI. 

OF  THE  GENERAL  RIGHTS  AND  DUTIES  OF 
NEUTRAL  NATIONS. 

1,  What  are  the  chief  rights  and  duties  of  neutrals  ? — 115 

They  shall  be  permitted  to  carry  on  their  accustomed  trade,  under  a 
few  necessary  restrictions.  They  are  to  furnish  no  aids  to  one  party, 
•which  they  are  not  equally  ready  to  furnish  to  the  other  ;  even  a  loan  of 
money  to  one  of  the  belligerent  parties,  is  considered,  to  be  a  violation  of 
neutrality.  But  the  neutral  duty  does  not  extend  so  far  as  to  prohibit  the 
fulfilment  of  antecedent  engagements.  But  if  a  neutral  power  be  under  a 
contract  to  furnish  succours  to  one  party,  he  is  said  not  to  be  bound,  if  his 
ally  was  the  aggressor  ;  and  in  this  solitary  instance  the  neutral  may  ex- 
amine into  the  merits  of  the  war,  so  far  as  to  see  whether  the  casusfoede- 
ris  exists.  A  neutral  has  a  right  to  pursue  his  ordinary  commerce,  and 
may  become  the  carrier  of  the  enemies'  goods,  without  being  subject  to 
any  confiscation  of  the  ship,  or  of  the  neutral  articles  on  board  ;  though 
not  without  the  risk  of  having  the  voyage  interrupted  by  the  seizure  of  the 
hostile  property. 

2,  What  if  neutral  property  be  found  in  the  vessels  of  the  enemy  ? — 117 

It  is  inviolable.  But  the  general  inviolability  of  the  neutral  charac- 
ter goes  farther  than  merely  the  protection  of  neutral  property.  It  pro- 
tects the  property  of  the  belligerents  when  within  the  neutral  jurisdiction. 

3,  What  if  the  enemy  be  attacked,  or  any  capture  made  under  neutral 
protection  ? — 117 

The  neutral  is  bound  to  redress  the  injury,  and  effect  restitution. — 
The  books  are  full  of  cases  recognising  this  principle  of  neutrality.  No 
act  of  hostility  is  to  be  commenced  on  neutral  ground. 


28  KENT'S  COMMENTARIES,  [VOL.  i. 

4.  What  if  a  belligerent  cruiser  inoffensively  passes  over  a  portion  of 
water  lying  within  the  neutral  jurisdiction?  — 119 

That  fact  is  not  usually  considered  such  a  violation  of  the  territory  as 
to  effect  and  invalidate  a  capture  made  beyond  it.  It  has  been  held,  in 
this  country,  that  foreign  ships,  offending  against  our  laws,  within  our 
jurisdiction,  may  be  pursued  and  seized  upon  the  ocean,  and  rightfully 
brought  into  our  ports  for  adjudication. 

5.  What  were  the  rules  of  neutrality  established  by  congress  in  1793 1 
—•122 

That  the  original  arming  or  equipping  of  vessels  in  our  ports,  by  any 
of  the  powers  at  war,  for  military  service,  was  unlawful,  and  no  such  ves- 
sel was  entitled  to  an  asylum  in  our  ports.  The  equipment  by  them  of 
government  vessels  of  war,  in  matters  which,  if  done  to  other  vessels, 
would  be  applicable  either  to  commerce  or  war,  was  lawful.  The  equip- 
ment by  them  of  vessels  fitted  for  merchandise  and  war,  and  applicable  to 
either,  was  lawful ;  but  if  it  were  of  a  nature  solely  applicable  to  war,  it 
was  unlawful.  And  if  the  armed  vessel  of  one  nation  should  depart  from 
our  jurisdiction,  no  armed  vessel  being  within  the  same,  and  belonging  to 
an  adverse  belligerent  power,  should  depart  until  twenty-four  hours  after 
the  former,  without  being  deemed  to  have  violated  the  law  of  nations. 

6.  What  are  the  principal  provisions  made  by  congress  on  the  subject 
of  neutrality? — 123 

It  is  declared  to  be  a  misdemeanor  for  any  citizen  of  the  United  States, 
within  the  territory  or  jurisdiction  thereof,  to  accept  and  exercise  a  com- 
mission to  serve  a  foreign  prince,  state,  colony,  district,  or  people,  in  war, 
by  land  or  by  sea,  against  any  prince,  state,  colony,  district,  or  people, 
with  whom  the  United  States  are  at  peace  ;  or  for  any  person,  except  a 
subject  or  citizen  of  any  foreign  prince,  state,  colony,  district,  or  people, 
transiently  within  the  United  States,  on  board  of  any  foreign  armed  ves- 
sel, within  the  territory  or  jurisdiction  of  the  United  States,  to  enlist  or 
enter  himself,  or  hire  or  retain  another  person  to  enlist  or  enter  himself, 
or  go  beyond  the  limits  of  the  United  States,  with  intent  to  be  enlisted  or 
entered  in  the  service  of  any  foreign  prince,  state,  colony,  district  or  peo- 
ple, as  a  soldier,  mariner  or  seaman;  or  to  fit  out  and  arm,  or  to  increase 
or  augment  the  force  of  any  armed  vessel,  with  intent  that  such  vessel  be 
employed  in  the  service  of  any  foreign  power  at  war  with  another  power, 
with  whom  we  are  at  peace ;  or  to  begin,  or  set  on  foot,  provide,  or 
prepare  the  means  for  any  military  expedition  or  enterprise,  to  be  carried 
on  from  thence  against  the  territory  or  dominions  of  any  foreign  prince,  or 
state,  or  of  any  colony,  district,  or  people,  with  whom  we  are  at  peace  ; 
or  to  hire  or  enlist  troops  or  seamen,  for  foreign  military  or  naval  service  ; 
or  to  be  concerned  in  fitting  out  any  vessels  to  cruise  or  commit  hostilities 
in  foreign  service,  against  a  nation  at  peace  with  us  ;  and  the  vessel  in  the 
latter  case  is  made  subject  to  forfeiture.  It  has  been  decided,  that  captures 
made  by  a  vessel  so  illegally  fitted  out,  whether  a  public  or  private  armed 
ship,  were  torts,  and  that  the  original  owner  was  entitled  to  restitution,  if 


LEC.  VI.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  29 

the  property  was  brought  within  our  jurisdiction  ;  but  that  an  illegal  out- 
fit did  not  affect  a  capture  made  after  the  cruise  to  which  the  outfit  had 
been  applied,  had  terminated. 

7.  What  is  the  rule  as  to  carrying  prizes  into  neutral  ports  for  sale  ? 
—123 

That  a  belligerent  cruiser  may,  consistently  with  a  state  of  neutrality, 
until  prohibited  by  the  neutral  power,  bring  her  prize  into  a  neutral  port, 
and  sell  it. 

8.  What  if  enemy's  property  be  found  on  board  of  neutral  ships  ?  — 124 

It  is  not  protected,  if  the  neutral  vessel  be  beyond  the  neutral  jurisdic- 
tion. It  was  formerly  a  question  \vhether  the  neutral  ship  conveying  ene- 
my's property,  was  not  liable  to  confiscation  for  that  cause.  This  was 
the  old  law  of  France,  in  cases  in  which  the  master  of  the  vessel  know- 
ingly took  on  board  the  enemy's  property  ;  but  Bynkershoeck  truly  ob- 
serves, that  the  master's  knowledge  is  immaterial  in  the  case,  and  that  the 
rule  in  the  Roman  law,  making  the  vessel  liable  for  the  fraudulent  act  of 
the  master,  was  merely  a  fiscal  regulation,  and  did  not  apply  ;  and  for 
the  neutral  to  carry  enemy's  goods,  is  not  unlawful. 

9.  What  is  the  rule  if  neutral  property  be  found  on  board  of  enemy's 
ships?  — 128 

It  is  to  be  restored  without  any  compensation  for  the  detention  and 
other  necessary  inconveniences  attending  the  capture.  A  neutral  flag 
constitutes  no  protection  to  enemy's  property,  and  a  belligerent  flag  com- 
municates no  hostile  character  to  neutral  property. 

10.  Is  the  captor  of  the  enemy's  vessel  entitled  to  freight  from  the  owner 
of  neutral  goods  found  on  board,  and  restored?— 131 

Under  certain  circumstances,  the  captor  has  been  considered  to  be 
entitled  to  freight,  even  though  the  goods  were  carried  to  the  claimant's 
own  country  and  restored ;  and  he  clearly  is  entitled  to  freight,  if  he  per- 
forms the  voyage,  and  carries  the  goods  to  the  port  of  destination. 

11.  Is  neutral  property  onboard  of  an  armed  belligerent  vessel,  protect- 
ed by  its  neutral  character? — 132 

In  this  country  the  Supreme  Court  has  decided  that  it  is.  In  Eng- 
land the  High  Court  of  Admiralty  has  made  a  contrary  decision. 


30  KENT'S  COMMENTARIES,  [VOL. 


LECTURE   VII. 
OF  RESTRICTIONS  UPON  NEUTRAL  TRADE. 

1.  What  are  the  principal  restrictions  imposed  by  the  law  of  nations 
upon  the  trade  of  neutrals  ? — 135 

The  prohibition  to  furnish  the  belligerent  parties  with  warlike  stores, 
and  other  articles  which  are  directly  auxiliary  to  warlike  purposes.  Such 
goods  are  denominated  contraband  of  war,  but  in  the  attempt  to  define 
them  the  authorities  vary,  or  are  deficient  in  precision,  and  the  subject  has 
long  been  a  fruitful  source  of  dispute  between  neutral  and  belligerent 
nations. 

2.  How  does  Grotius  define  contraband  of  war  ? — 135 

He  distinguishes  between  things  which  are  useful  only  in  war,  as 
arms  and  ammunition,  and  things  which  serve  merely  for  pleasure,  and 
things  which  are  of  a  mixed  nature,  and  useful  both  in  peace  and  war. — 
He  agrees  with  other  writers  in  prohibiting  neutrals  from  carrying  articles 
of  the  first  kind  to  an  enemy,  as  well  as  permitting  the  second  kind  to  be 
carried.  As  to  articles  of  the  third  class,  which  are  of  indiscriminate  use 
in  peace  and  war,  such  as  money,  provisions,  ^hips,  and  naval  stores,  he 
says  they  are  sometimes  lawful  articles  of  neutral  commerce,  and  some- 
times not.  They  would  be  contraband  if  carried  to  a  besieged  town,  camp 
or  port. 

3.  How  do  writers  in  general  define  contraband  of  war  1  — 136 

In  a  naval  war  it  is  admitted,  that  ships  become  contraband,  and 
horses  and  saddles  may  be  included.  Vattel  speaks  with  some  want  of 
precision,  and  only  says  in  general  terms :  that  commodities  particularly 
used  in  war  are  contraband,  such  as  arms,  military  and  naval  stores,  tim- 
ber, horses,  and  even  provisions,  in  certain  junctures,  when  there  are 
hopes  of  reducing  the  enemy  by  famine.  Locenius  and  some  other  author- 
ities referred  to  by  Valin,  consider  provisions  as  generally  contraband  ; 
but  Valin  and  Pothier  insist  that  they  are  not  so,  either  by  the  law  of 
France,  or  by  the  common  law  of  nations,  unless  carried  to  besieged  or 
blockaded  places.  The  marine  ordinance  of  Louis  XIV.  included 
horses  and  their  equipage,  transported  for  military  service.  They  are  in- 
cluded in  the  restricted  list  of  contraband  articles  mentioned  in  the  treaty 
between  theUnited  States  and  Colombia  in  1825.  Valin,  says,  that  naval 
stores  have  been  regarded  as  contraband  from  the  beginning  of  the  last 
century,  and  the  English  prize  law  is  very  explicit  on  this  point.  Naval 
stores,  and  materials  for  ship  building,  and  even  corn,  grain,  and  victuals 
of  all  sorts  going  to  the  dominions  of  the  enemy  were  declared  contraband 
by  an  ordinance  of  Charles  I.  in  1626.  Sail-cloth  is  now  held  to  be  uni- 


LEC.  VII.]  REDUCED  TO   QUESTIONS  AND  ANSWERS.  31 

versally  contraband,  even  on  a  destination  to  ports  of  mere  mercantile  na- 
val equipment ;  and  in  the  case  of  the  Maria,  it  was  held  that  tar,  pitch, 
and  hemp,  and  whatever  materials  went  to  the  construction  and  equipment 
of  vessels  of  war,  were  contraband  by  the  modern  law  of  nations.  The 
executive  government  of  this  country  has  frequently  conceded,  that  ma- 
terials for  the  building,  equipment,  and  armament  of  ships  of  war,  as  tim- 
ber and  naval  stores,  were  contraband.  But  it  does  not  seem  that  timber 
is,  in  se,  in  all  cases  to  be  considered  a  contraband  article,  though  destined 
to  an  enemy's  port. 

The  modern  established  rule  is,  that  provisions  are  not  generally  con- 
traband, but  may  become  so,  under  circumstances  arising  out  of  the  par- 
ticular situation  of  the  war,  or  the  condition  of  the  parties  engaged  in  it. 

4.  What  are  the  principal  circumstances  which  tend  to  preserve  pro- 
visions from  being  liable  to  be  treated  as  contraband  1  — 139 

One  is,  that  they  are  the  growth  of  the  country  which  produces  them. 
Another  circumstance  to  which  some  indulgence  is  shown  by  the  practice 
of  nations,  is,  when  the  articles  are  in  their  native  and  unmanufactured 
state.  Thus,  iron  is  treated  with  indulgence,  though  anchors  and  other 
instruments  fabricated  out  of  it,  are  directly  contraband.  Hemp  is  more 
favourably  considered  than  cordage,  and  wheat  is  not  considered  as  so 
noxious  a  commodity,  when  going  to  an  enemy's  country,  as  any  of  its 
final  preparations  for  human  use.  The  'most  important  distinction,  is 
whether  the  articles  were  intended  for  the  ordinary  use  of  life,  or  even 
for  mercantile  ships'  use,  or  whether  they  were  going  with  a  highly  pro- 
bable destination  to  military  use. 

5.  What  if  part  of  a  cargo  be  contraband,  and  part  neutral  ? — 143 

The  contraband  articles  are  said  to  be  of  an  infectious  nature,  and 
they  contaminate  the  whole  cargo  belonging  to  the  same  owners.  The 
innocence  of  any  particular  article  is  not  usually  admitted  to  exempt  it 
from  the  general  confiscation. 

6.  What  is  the  law  concerning  blockades  1 — 144 

That  neutrals  forfeit  the  immunities  of  their  national  character  by 
violations  qf  blockade  ;  and  among  the  rights  of  belligerents,  there  is  none 
more  clear  and  uncontrovertible,  or  more  just  and  necessary  in  the  appli- 
cation, than  that  which  gives  rise  to  the  law  of  blockade.  Bynkershoeck 
says,  it  is  founded  on  the  principles  of  natural  reason,  as  well  as  upon  the 
usage  of  nations;  and  Grotius  considers  the  carrying  of  supplies  to  a  be- 
sieged town,  or  blockaded  port,  as  an  offence  exceedingly  aggravated  and 
injurious.  They  both  agree  that  a  neutral  may  be  dealt  with  severely  ; 
and  Vattel  says,  he  may  be  treated  as  an  enemy.  The  law  of  blockade 
is,  however,  so  harsh  and  severe  in  its  operation,  that,  in  order  to  apply 
it,  the  fact  of  the  actual  blockade  must  be  established  by  clear  and  unequi- 
vocal evidence,  and  the  neutral  must  have  had  due  previous  notice  of  it ; 
and  the  squadron  allotted  for  the  purpose  of  its  execution,  must  be  compe- 
tent to  cut  off  all  communication  with  the  interdicted  place  or  port ;  and 


32  KENT'S  COMMENTARIES,  [YOL.  i. 

the  neutral  must  have  been  guilty  of  some  violation,  either  by  going  in,  or 
attempting  to  enter,  or  by  coming  out  with  a  cargo,  laden  after  the  com- 
mencement of  the  blockade. 

A  blockade  must  be  existing  in  point  of  fact ;  and  in  order  to  constitute 
that  existence,  there  must  be  a  power  present  to  enforce  it.  The  defini- 
tion of  a  blockade  given  by  the  convention  of  the  Baltic  powers  in  1780, 
and  again  in  180],  and  by  the  ordinance  in  congress  in  1781,  required 
that  there  should  be  actually  a  number  of  vessels  stationed  near  enough  to 
the  port  to  make  the  entry  apparently  dangerous. 

7.  What  if  the  blockading  squadron  be  occasionally  absent  ? — 145 

If  the  absence  be  produced  by  accident,  as  in  the  case  of  a  storm, 
and  when  the  station  is  resumed  with  due  diligence,  it  does  not  suspend 
the  blockade,  provided  the  suspension,  and  the  reason  of  it,  be  known  ; 
and  the  law  considers  an  attempt  to  take  advantage  of  such  an  accidental 
removal,  as  an  attempt  to  break  the  blockade,  and  a  mere  fraud. 

8.  In  what  way  may  notice  of  blockade  be  communicated  ?  — 147 

Either  actually  by  a  formal  notice  from  the  blockading  power ;  or 
constructively  by  notice  to  his  government,  or  by  the  notoriety  of  the  fact. 
It  is  immaterial  in  what  way  the  neutral  comes  to  the  knowledge  of  the 
blockade.  If  the  blockade  actually  exists,  and  he  has  knowledge  of  it,  he 
is  bound  not  to  violate  it. 

9.  What  is  the  effect  of  notice  to  a  foreign  government? — 147 

It  is  a  notice  to  all  the  individuals  of  that  nation,  and  they  are  not 
permitted  to  aver  ignorance  of  it,  because  it  is  the  duty  of  the  neutral  gov- 
ernment to  communicate  the  notice  to  their  people. 

10.  What  is  the  difference  of  a  blockade  regularly  notified,  and  one 
without  such  notice  1 — 147 

In  the  former  case,  the  act  of  sailing  for  the  blockaded  place,  with 
an  intent  to  evade  it,  or  to  enter  contingently,  amounts,  from  the  very  com- 
mencement of  the  voyage,  to  a  breach  of  the  blockade,  for  the  port  is  to 
be  considered  as  closed  up,  until  the  blockade  be  formally  revoked,  or  ac- 
tually raised  ;  whereas  in  the  latter  case  of  a  blockade  de  facto,  the  igno- 
rance of  the  party,  as  to  its  continuance,  may  be  received  as  an  excuse  for 
sailing  to  the  blockaded  place,  on  a  doubtful  and  provisional  destination. 

• 
12.  What  is  the  consequence  of  a  breach  of  blockade  ?  — 151 

The  confiscation  of  the  ship  and  goods.  If  a  ship  has  contracted 
guilt  by  a  breach  of  blockade,  the  offence  is  not  discharged  until  the  end 
of  the  voyage.  The  penalty  never  travels  on  with  the  vessel  further 
than  to  the  end  of  the  voyage  ;  and  if  she  is  taken  in  any  part  of  that  voy- 
age, she  is  taken  in  delicto.  The  penalty  for  a  breach  of  blockade  is  also 
held  to  be  remitted,  if  the  blockade  had  been  raised  before  the  capture. 


LEG.  VII.]  REDUCED  TO   QUESTIONS  AND  ANSWERS.  33 

12.  What  is  the  law  upon  the  subject  of  carrying  enemy's  despatches  ? 
—152 

That  it  is  an  act  of  illegal  assistance  afforded  to  the  enemy.  The  carry- 
ing two  or  three  cargoes  of  stores,  is  necessarily  an  assistance  of  a 
limited  nature  ;  but  in  the  transmission  of  despatches  may  be  conveyed  the 
entire  plan  of  a  campaign,  and  it  may  lead  to  a  defeat  of  all  the  projects 
of  the  other  belligerent  in  that  theatre  of  the  war.  The  appropriate  reme- 
dy for  this  offence,  is  the  confiscation  of  the  ship  ;  and  if  any  privity  sub- 
sists between  the  owners  of  the  cargo  and  the  master,  they  are  involved 
by  implication  in  his  delinquency  If  the  cargo  be  the  property  of  the 
proprietors  of  the  ship,  then,  by  the  general  rule,  ob  continentiam  delicti,  the 
cargo  shares  the  same  fate. 

13.  What  is  the  law  of  nations  upon  the  belligerent  right  to  visitation 
and  search  of  neutral  merchant  ships  ? — 153 

In  order  to  enforce  the  rights  of  belligerent  nations  against  ihe  delin- 
quencies of  neutrals,  and  to  ascertain  the  real,  as  well  as  the  assumed 
character  of  all  vessels  upon  the  high  seas,  the  law  of  nations  gives  them 
the  practical  power  of  visitation  and  search.  It  is  founded  on  necessity, 
and  is  strictly  a  war  right,  and  does  not  exist  in  time  of  peace.  If  upon 
making  the  search,  the  vessel  be  found  employed  in  contraband  trade,  or 
in  carrying  enemy's  despatches,  she  is  liable  to  be  taken  and  brought  in 
for  adjudication,  before  a  prize  court. 

14.  What  if  the  neutral  resists  this  right  ? — 154 

The  penalty  for  the  violent  contravention  of  this  right,  is  the  confis- 
cation of  the  property  so  withheld  from  visitation.  Upon  this  principle,  a 
fleet  of  Swedish  merchant  ships,  sailing  under  convoy  of  a  Swedish  man- 
of-war,  and  under  the  instructions  of  the  Swedish  government  to  resist, 
by  force,  the  right  claimed  by  the  British  lawfully  commissioned  cruisers, 
was  condemned.  The  resistance  of  the  convoying  ship  was  a  resistance 
of  the  whole  convoy.  The  doctrine  of  the  British  admiralty  on  the  right 
of  visitation  and  search,  and  on  the  limitation  of  the  right,  has  been  re- 
cognised in  its  fullest  extent  by  the  courts  of  justice  in  this  country. 

15.  What  is  the  rule  as  to  neutral  documents? — 157 

That  a  neutral  is  bound  not  only  to  submit  to  search,  but  to  have  his 
vessel  duly  furnished  with  genuine  documents  requisite  to  support  her 
neutral  character.  The  most  material  of  these  documents  are.  the  register, 
passport,  sea  letter,  muster  roll,  log  book,  charter  party,  invoice,  and  bill 
of  lading. 

16.  What  if  a  ship  conceals  her  papers  ?  — 157 

It   will  justify   a   capture,  and  carrying  into  port  for  adjudication, 

though  it  does  not  absolutely  require  a  condemnation.     The   spoliation  of 

papers  is  a  still  more  aggravated  and  inflamed  circumstance  of  suspicion. 

That  fact  may  exclude  further  proof,  and  be  sufficient  to  infer  guilt ;  but  it 

5 


34  KENT'S  COMMENTARIES,  [vol.  r, 

does  not  in  England,  as  it  does  by  the  maritime  laws  of  other  countries, 
create  an  absolute  presumption  juris  et  de  jure.  The  supreme  court  of  the 
United  States  have  followed  the  less  rigorous  English  rule,  and  held  that 
spoliation  of  papers  was  not,  of  itself,  sufficient  ground  for  condemnation. 


LECTURE    VIII. 

OF  TRUCES,  PASSPORTS,  AND  TREATIES 
OF  PEACE. 

1.  What  is  the  effect  of  a  truf  e  ? — 159 

It  does  not  terminate  the  war,  but  it  is  one  of  the  commercia  belli 
which  suspends  its  operations.  A  particular  truce  is  only  a  partial  cessa- 
tion of  hostilities,  as  between  a  town  and  an  army  besieging  it.  But  a 
general  truce  applies  to  the  operations  of  the  war,  and.  if  it  be  for  a  long 
or  indefinite  period  of  time,  it  amounts  to  a  temporary  peace. 

2.  By  whom  may  a  truce  be  made  ? — 159 

A  partial  truce  may  be  made  by  a  subordinate  commander,  and  it  is  a 
power  necessarily  implied  in  his  trust ;  but  it  is  requisite  to  a  general 
truce,  or  suspension  of  hostilities  throughout  the  nation,  or  for  a  great 
length  of  time,  that  it  be  made  by  the  sovereign  of  the  country,  or  by  his 
special  authority.  The  general  principle  on  the  subject  is,  that  if  a  com- 
mander makes  a  compact  with  the  enemy,  and  it  be  of  such  a  nature  that 
the  power  to  make  it  could  be  reasonably  implied  from  the  nature  of  the  trust, 
it  would  be  valid  and  binding,  though  he  abused  his  trust.  A  truce  binds 
the  contracting  parties  from  the  time  it  is  concluded,  but  it  does  not  bind 
the  individuals  of  the  nation  so  as  to  render  them  personally  responsible 
for  a  breach  of  it,  until  they  have  had  actual  or  constructive  notice  of  it. 

3.  What  are  the  rights  of  the  parties  under  the  truce  ? — 160 

Each  party  may  do,  within  his  own  territories,  whatever  he  would 
have  a  right  to  do  in  time  of  peace.  He  may  continue  active  preparations 
for  war,  by  repairing  fortifications,  levying  or  disciplining  troops,  and  col- 
lecting provisions,  and  articles  of  war.  But  in  the  case  of  a  truce  between 
the  governor  of  a  fortified  town,  and  the  army  besieging  it,  neither  party 
is  at  liberty  to  continue  the  works,  constructed  either  for  attack  or  defence, 
and  which  could  not  safely  be  done  if  hostilities  had  continued.  The 
meaning  of  every  such  compact  is,  that  all  things  should  remain  as  they 
were  in  the  places  contested,  and  of  which  the  possession  was  disputed 
at  the  moment  of  the  conclusion  of  the  truce. 


LEG.  VIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  35 

At  the  expiration  of  the  truce, .hostilities  may  recommence  without  any 
fresh  declaration  of  war  ;  but  if  it  be  for  an  indefinite  time,  justice  and 
good  faith  would  require  due  notice  of  an  intention  to  terminate  it. 

4.  What  is  a  passport  ?— 162 

It.  is  a  privilege  granted  in  warj  and  exempting  the  party  from  the  ef- 
fect of  its  operations,  during  the  time,  and  to  the  extent  prescribed  in  the 
permission. 

5.  Who  may  grant  passports  ? — 162 

They  flow  from  the  sovereign  authority  ;  but  the  power  may  be  dele- 
gated by  the  sovereign  to  persons  in  subordinate  command,  and  they 
are  vested  with  that  power,  either  by  an  express  commission,  or  by  the 
nature  of,  their  trust.  The  general  of  an  army,  from  the  very  nature  of  his 
power,  can  grant  safe  conducts  ;  but  the  permission  is  not  transferable  by 
the  person  named  in  the  passport. 

6.  What  is  the  effect  of  a  license  to  trade,  given  by  the  enemy  to  the 
subjects  of  the  a  Iverse  party  ? — 163 

It  is  the  resumption  of  a  state  of  peace  to  the  extent  of  the  license. 
In  the  country  which  grants  them,  licenses  to  carry  on  a  pacific  commerce 
are  strict i  juris,  as  being  exceptions  to  the  general  rule  ;  though  they  are 
not  to  be  construed  with  pedantic  accuracy,  nor  will  every  small  deviation 
be  held  to  vitiate  the  fair  effect  of  them. 

7.  What  is  the  effect  given  to  treaties  of  peace  ? — 165 

When  made  by  the  competent  power,  they  are  obligatory  upon  the 
whole  nation.  If  the  treaty  requires  the  payment  of  money  to  carry  it 
into  effect,  and  the  money  cannot  be  raised  but  by  an  act  of  the  legisla- 
ture, the  treaty  is  morally  obligatory  upon  the  legislature  to  pass  the  law, 
and  to  refuse  it  would  be  a  breach  of  public  faith.  The  department  of  the 
government  that  is  intrusted  with  the  treaty-making  power,  is  competent 
to  bind  the  national  faith  in  its  discretion  ;  for  the  power  to  make  treaties 
of  peace  must  be  co-extensive  with  the  exigencies  of  the  nation.  All 
treaties  made  by  that  power  become  of  absolute  efficacy,  because  they 
are  the  supreme  law  of  the  land. 

8.  What  is  the  rule  as  to  the  right  to  alienate  the  public  domain  by  trea- 
ty ?— 166 

There  can  be  no  doubt  that  the  power  competent  to  bind  the  nation  by 
treaty  may  alienate  the  public  domain  and  property  by  treaty.  A  power 
to  make  treaties  of  peace  necessarily  implies  a  power  to  decide  the  terms 
upon  which  they  shall  be  made,  and  foreign  states  could  not  deal  safely 
with  the  government  upon  any  other  presumption.  The  power  that  is 
intrusted  generally  and  largely  with  the  authority  to  make  valid  treaties  of 
peace,  can  of  course  bind  the  nation  by  alienation  of  part  of  its  territory  ; 
and  this  is  equally  the  case, whether  that  territory  be  already  in  the  occupation 


36  KENT'S  COMMENTARIES,  [VOL.  i, 

of  the  enemy,  or  remains  m  the  possession  of  the  nation,  and  whether  the 
property  be  public  or  private. 

"  Vattel  admits  that  the  fundamental  laws  of  a  nation  may  withhold  the 
power  of  alienation  by  treaty  ;  and  it  would  seem,  by  necessary  inference, 
to  be  a  violation  of  fundamental  law,  for  the  treaty-making  power,  acting 
under  such  an  instrument  as  the  constitution  of  the  United  Slates,  to  agree 
by  treaty  for  the  abolition  or  alteration  of  any  part  of  it.  The  stipulation 
would  go  to  destroy  the  very  authority  for  making  the  treaty." 

9.  What  is  the  rule  as  regards  allies?  — 167 

That  the  principal  party  in  whose  name  the  war  is  made,  cannot 
justly  make  peace  without  including  those  defensive  allies  in  the  pacifi- 
cation who  have  afforded  assistance,  though  they  may  not  have  acted  as 
principals.  The  ally  is,  however,  to  be  no  further  a  party  to  the  stipula- 
tions and  obligations  of  the  treaty,  than  he  has  been  willing  to  consent.  All 
that  the  principal  can  require,  is,  that  the  ally  be  restored  to  a  state  of 
peace. 

The  effect  of  peace  is  to  put  an  end  to  the  war,  and  to  abolish  the  sub- 
ject of  it.  Peace  relates  to  the  war  which  it  terminates.  It  is  an  agree- 
ment to  waive  all  discussion  concerning  the  respective  rights  of  the  par- 
ties, and  to  bury  in  oblivion  all  the  original  causes  of  the  war.  It  forbids 
the  revival  of  the  same  war,  by  taking  up  arms  for  the  cause  which  at  first 
kindled  it,  though  it  is  no  objection  to  subsequent  pretensions  to  the  same 
thing  on  other  foundations. 

10.  At  what  time  do  treaties  usually  take  effect  ? — 169 

They  bind  the  contracting  parties  from  the  moment  of  their  conclu- 
sion, and  that  is  understood  to  be  from  the  day  on  which  they  are  signed. 

11.  How  far  are  treaties  obligatory  upon  the  parties? — 174 

Treaties  of  every  kind,  when  made  by  the  competent  authority,  are 
as  obligatory  upon  nations  as  private  contracts  are  binding  upon  individuals; 
and  they  are  to  receive  a  fair  and  liberal  construction,  and  to  be  kept  with 
the  most  scrupulous  faith. 

12.  What  is  the  distinction  made  by  writers  on  public  law,  between  a 
new  war,  for  new  cause,  and  a  breach  of  a  treaty  of  peace  ?  — 175 

In  the  former  case  the  rights  acquired  by  the  treaty  subsist,  notwith- 
standing the  new  war  ;  but  in  the  latter  case  they  are  annulled  by  the 
breach  of  the  treaty  of  peace  upon  which  they  are  founded. 

13.  What  is  the  effect  of  a  violation  of  one  article  of  a  treaty? — 175 
It  is  a  violation  of  the  whole  treaty. 


LEC.    IX.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  37 


LECTURE    IX. 
OF  OFFENCES  AGAINST  THE  LAW  OF  NATIONS. 

1.  What  are  the  principal  offences  against  the  law  of  nations  ? — 182 

The  violation  of  safe  conducts,  infringements  of  the  rights  of  ambassa- 
dors, and  piracy.  To  these  we  may  add  the  slave  trade,  which  may  now 
be  considered,  not  indeed  as  a  piratical  trade,  absolutely  unlawful  by 
the  law  of  nations,  but  as  a  trade  condemned  by  the  general  principles  of 
justice  and  humanity,  openly  professed  and  declared  by  the  powers  of 
Europe. 

2.  What  is  the  statute  law  of  the  United  States  upon  the  violation  of 
safe  conducts  ? — 182 

That  if  any  person  shall  violate  any  safe  conduct  or  passport,  granted 
under  the  authority  of  the  United  States,  he  shall,  upon  conviction,  be  im- 
prisoned not  exceeding  three  years,  and  fined  at  the  discretion  of  the  court. 
The  same  punishment  is  inflicted  upon  those  persons  who  infringe  the  law 
of  nations,  by  offering  violence  to  ambassadors,  and  other  public  ministers, 
or  by  being  concerned  in  prosecuting  or  arresting  them. 

3.  What  is  piracy?— 183 

It  is  robbery,  or  a  forcible  depredation  upon  the  high  seas,  without 
lawful  authority,  and  done  animo  furandi,  and  in  the  spirit  and  intention 
of  universal  hostility. 

4.  How  are  pirates  every  where  punished  ? — 184 

They  are  every  where  pursued  and  punished  with  death. 

5.  What  is  the  rule  as  to  the  right  to  pursue  and  take  them  ? — 184 

That  every  nation  has  a  right  to  attack  and  exterminate  them  without 
any  previous  declaration  of  war;  for  though  pirates  may  form  a  loose  and 
temporary  association  among  themselves,  and  re-establish  in  some  de- 
gree those  laws  of  justice  which  they  had  violated  with  the  rest  of  the 
world,  yet  they  are  not  considered  as  a  national  body,  or  entitled  to  the 
laws  of  war,  as  one  of  the  community  of  nations.  They  acquire  no  rights 
by  conquest,  and  the  law  of  nations  and  the  municipal  laws  of  every 
country  authorize  the  true  owner  to  reclaim  his  property  taken  by  pirates, 
wherever  it  may  be  found;  and  they  do  not  recognise  any  title  to  be  de- 
rived from  an  act  of  piracy. 

6.  What  acts  have  the  laws  of  the  United  States  declared  to  be  piracy? 
—185 


38  KENT'S  COMMENTARIES,  [VOL.  i. 

Murder  or  robbery  committed  on  the  high  seas,  or  in  any  river,  haven, 
or  bay,  out  of  the  jurisdiction  of  any  particular  state,  or  any  other  offence, 
which  if  committed  within  the  body  of  a  county,  would,  by  the  laws  of  the 
United  States  be  punishable  with  death,  shall  be  adjudged  piracy  and 
felony,  and  punishable  with  death.  It  was  further  declared  that  if  any 
captain  or  mariner  should  piratically  and  feloniously  run  away  with  any 
vessel,  or  any  goods  or  merchandise  to  the  value  of  fifty  dollars  ;  or 
should  yield  up  any  such  vessel  voluntarily  to  pirates  ;  or  if  any  seaman 
should  forcibly  hinder  his  commander  from  defending  the  ship  or  goods 
committed  to  his  trust,  or  should  make  a  revolt  in  the  ship  ;  every  such 
offender  should  be  adjudged  a  pirate  and  felon,  and  punishable  with  death. 
Accessaries  to  such  piracies  before  the  fact,  are  punishable  in  like  man- 
ner. If  any  person  engaged  in  any  piratical  enterprise,  or  belonging  to 
the  crew  of  any  piratical  vessel,  should  land  and  commit  robbery  on  shore, 
such  an  offender  shall  also  be  adjudged  a  pirate. 

7.  What  is  the  law   as  to  the  right  of  jurisdiction  in  cases  of  piracy  ? 
—186 

That  it  is  of  no  importance  for  the  purpose  of  giving  jurisdiction,  on 
whom  or  where  a  piratical  offence  has  been  committed.  A  pirate  who  is 
one  by  the  law  of  nations,  may  be  tried  and  punished  in  any  country  where 
he  may  be  found. 

8.  What  would  be  the  effect  of  a  plea  of  autrefois  acquit,  resting  on  a 
prosecution  in  any  civilized  state? — 188 

It  would  be  a  good  plea  in  any  other  civilized  state. 

9.  What  if  an  alien,  under  a  national  commission,  commit  an  act  of  piracy 
in  pursuance  of  his  authority  ? — 188 

His  acts  may  be  hostile,  and  his  nation  responsible  for  them.  They  may 
amount  to  a  lawful  cause  of  war,  but  they  are  never  regarded  as  piracy. 

10.  What  penalties  have  the  United  States  prescribed  against  the  im- 
portation or  exportation  of  slaves  for  traffic  ?  — 194 

The  act  of  May,  1820,  declared,  that  if  any  citizen  of  the  United 
States,  being  of  the  crew  of  a  foreign  vessel,  engaged  in  the  slave  trade, 
or  any  person  whatever,  being  of  the  crew  of  any  vessel  armed  in  whole 
or  in  part,  or  navigated  for,  or  on  behalf  of  any  citizen  of  the  United  States, 
should  land  on  any  foreign  shore,  and  seize  any  negro  or  mulatto,  with 
intent  to  make  him  a  slave,  or  should  decoy,  or  forcibly  bring,  or  receive 
such  negro  on  board  of  such  vessel,  with  like  intent ;  or  should  forcibly 
confine  or  detain  on  board,  any  negro  or  mulatto  not  lawfully  held  to  ser- 
vice, with  intent  to  make  him  a  slave,  or  should,  on  the  high  seas,  or  on 
any  tide  water,  transfer  or  deliver  to  any  other  vessel,  any  such  negro  or 
mulatto,  with  intent  to  make  him  a  slave,  or  should  deliver  on  shore,  from 
on  board  any  such  vessel,  any  negro  or  mulatto  with  like  intent,  such  citi- 
zen or  person  should  be  adjudged  a  pirate,  and  upon  conviction,  suffer 
death. 


LEC.    XI.]  REDUCED    TO    QUESTIONS   AND    ANSWERS.  39 


LECTURE    X. 
OF  THE  HISTORY  OF  THE  AMERICAN  UNION. 

1.  For  what  purpose  was  the  government  of  the  United  States  erected  1 
—201 

It  was  erected  by  the  free  voice  and  joint  will  of  the  people  of  Amer- 
ica for  their  common  defence  and  general  welfare. 

2.  To  what  do  its  powers  apply  ? — 201 

They  apply  to  those  great  interests  which  relate  to  this  country  in 
its  national  capacity,  and  which  depend,  for  stability  and  protection,  on 
the  consolidation  of  the  Union.  It  is  clothed  with  the  principal  attributes 
of  political  sovereignty,  and  is  justly  deemed  the  guardian  of  our  best 
rights,  the  source  of  our  highest  civil  and  political  duties,  and  the  sure 
means  of  national  greatness. 


LECTURE    XI. 

OF  CONGRESS. 

1.  Of  what  does  Congress  consist  ? — 222 
Of  a  senate  and  house  of  representatives. 

2.  What  was  the  chief  object  of  a  separation  of  the  legislature  into  two 
houses  acting  separately,  and  with  co-ordinate  powers  ? — 222 

To  destroy  the  evil  effects  of  sudden  and  strong  excitement,  and  of 
precipitate  measures  springing  from  passion,  caprice,  prejudice,  party  in- 
trigue, and  personal  influence,  which  have  been  found  by  sad  experience 
to  exercise  a  potent  and  dangerous  sway  in  single  assemblies. 

3.  How  is  the  senate  of  the  United  States  formed  ? — 224 

It  is  composed  of  two  senators  from  each  state,  chosen  by  the  legis- 
lature thereof,  for  six  years,  and  each  senator  has  one  vote. 

4.  How  are  vacancies,  occurring  from  death  or  otherwise,  filled  ? — 225 


40  KENT'S  COMMENTARIES,  [VOL.  i. 

If  they  happen  during  the  recess  of  the  legislature  of  any  state,  the 
executive  thereof  may  make  temporary  appointments,  until  the  next  meet- 
ing of  the  legislature,  which  shall  fill  the  vacancies.  The  vice-president 
of  the  United  States  is  president  of  the  senate,  but  has  no  vote,  unless  they 
be  equally  divided. 

5.  What  qualifications  are  requisite  in  a  senator  ? — 228 

The  constitution  *  requires  that  each  senator  shall  be  thirty  years  of 
age,  and  nine  years  a  citizen  of  the  United  States,  and  at  the  time  of  his 
election,  an  inhabitant  of  the  state  for  which  he  is  chosen. 

6.  How  is  the  house  of  representatives  formed  ? — 228 

It  is  composed  of  members  chosen  every  second  year  by  the  people 
of  the  several  states,  who  are  qualified  to  vote  for  the  most  numerous 
branch  of  the  legislature  of  the  state  to  which  they  belong. 

7.  What  are  the  necessary  qualifications  of  a  representative  ? — 228 

That  he  hath  attained  the  age  of  twenty-five  years,  and  hath  been 
seven  years  a  citizen  of  the  United  States,  and  is,  at  the  time  of  his  elec- 
tion, an  inhabitant  of  the  state  in  which  he  is  chosen. 

8.  How  are  the  representatives  apportioned  among  the  states  ? — 230 

According  to  the  number  of  free  persons,  including  those  who  are 
bound  for  years,  and  excluding  Indians  not  taxed,  and  three-fifths  of  all 
other  persons.  The  number  of  representatives  cannot  exceed  one  for 
every  thirty  thousand,  but  each  state  is  entitled  to  one  representative. 

9.  What  are  the  powers  of  territorial  delegates  ? — 230 
They  have  a  right  to  debate,  but  not  to  vote. 

10.  What  are  the  privileges  of  the  two  houses  of  congress  ?— 234 

Each  house  is  made  the  sole  judge  of  the  election  returns  and  quali- 
fications of  its  members.  A  majority  of  each  house  constitutes  a  quorum 
to  do  business,  but  a  smaller  number  may  adjourn  from  day  to  day,  and 
compel  the  attendance  of  absent  members,  in  such  manner,  and  under 
such  penalties  as  each  house  may  provide.  Each  house  likewise  deter- 
mines the  rules  of  its  proceedings,  and  can  punish  its  members  for  disor- 
derly behaviour;  and  with  a  concurrence  of  two-thirds  expel  a  member. 
Each  house  is  likewise  bound  to  keep  a  journal  of  its  own  proceedings,  and 
from  time  to  time  publish  such  parts  as  do  not  require  secrecy,  and  to  enter 
the  ayes  and  nays  on  the  journal,  on  any  question  when  desired  by  one- 
fifth  of  the  members  present.  The  members  of  both  houses  are  likewise 
privileged  from  arrest  during  their  attendance  on  congress,  and  in  going  to 
and  returning  from  the  same,  except  in  cases  of  treason,  felony,  and  breach 
of  the  peace.  No  member  can  be  questioned  out  of  the  house  for  any 
speech  or  debate  therein.  There  is  no  power  expressly  given  to  either 


LEC.  XII.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  41 

house  of  congress  to  punish  for  contempts,  except  when  committed  by 
their  own  members,  but  the  supreme  court  decided  in  the  case  of  Ander- 
son, that  they  had  the  power  to  commit  for  contempt,  and  that  it  was  an 
implied  power,  and  of  vital  importance  to  the  safety,  character  and  dignity 
of  the  house. 


LECTURE   XII. 

OF  JUDICIAL  CONSTRUCTIONS  OF  THE  POWERS  OF 

CONGRESS. 

1.  What  are  the  judicial  constructions  put  ifpon  the  acts  of  congress 
giving  to  the  United  States  a  right  to  priority  of  payment  over  all  private 
creditors,  in  cases  of  insolvency,  and  in  the  distribution  of  the  estates  of 
deceased  debtors  ? — 244 

In  Fisher  v.  Slight,  (2  Crunch,  358,)  the  supreme  court  decided,  that 
the  acts  of  congress,  giving  that  general  priority  to  the  United  States,  were 
constitutional.  It  was  a  power  founded  on  the  authority  to  make  all  laws 
which  should  be  necessary  and  proper  to  carry  into  effect  the  powers 
vested  by  the  constitution  in  the  government  of  the  United  States.  The 
government  is  to  pay  the  debts  of  the  Union,  and  must  be  authorized  to 
use  the  means  most  eligible  to  effect  that  object.  It  has  a  right  to  make 
remittances  by  bills  or  otherwise,  and  to  take  those  precautions  which  will 
render  these  transactions  safe.  The  principle  settled,  was  that  the  United 
States  are  entitled  to  secure  to  themselves  the  exclusive  privilege  of  being 
preferred  as  creditors  to  private  citizens,  and  even  to  the  state  authorities. 
In  the  United  States  v.  Hooe,  (3  Crunch,  73,)  it  was  held,  that  the  priority 
to  which  the  United  States  were  entitled,  did  not  partake  of  the  character 
of  a  lien  on  the  property  of  public  debtors.  A  bona  fide  conveyance  of 
part  of  the  property  of  the  debtor,  not  for  the  fraudulent  purpose  of  evading 
the  law,  but  to  secure  a  fair  creditor,  is  not  a  case  within  the  act  of  con- 
gress. 

Afterwards,  in  Harrison  v.  Sterry,  (5  Craned,  289,)  it  was  held,  that 
in  the  distribution  of  a  bankrupt's  effects,  the  United  States  were  entitled 
to  their  preference,  although  the  debt  was  contracted  by  a  foreigner  in  a 
foreign  country,  and  the  United  States  had  proved  their  debt  under  a  com- 
mission of  bankruptcy.  Though  the  law  of  the  place  where  the  contract 
is  made,  be,  generally  speaking,  the  law  of  the  contract,  yet  the  right  of 
priority  forms  no  part  of  the  contract.  The  insolvency  which  was  to  en- 
title the  United  States  to  a  preference,  was  declared,  in  Prince  v.  Eaf,t- 
lett,  (8  Cranch,  431,)  to  mean  a  legal  and  known  insolvency,  manifested 
by  some  notorious  act,  according  to  law.  A  private  creditor  acquires  a 
6 


42  KENT'S  COMMENTARIES,  [VOL.  i. 

lien  by  attachment,  which  cannot  be  divested  by  process  subsequently  is- 
sued on  the  part  of  the  United  States.  Nor  will  the  lien  of  a  judgment 
creditor,  be  displaced  by  the  mere  priority  of  the  United  States.  The 
word  insolvency,  in  the  acts  of  congress,  means  a  legal  insolvency,  and  a 
a  mere  state  of  insolvency,  or  inability  in  a  debtor  to  pay  all  his  debts, 
gives  no  right  of  preference  to  the  United  States. 

2.  In  what  four  cases,  according  to  the  preceding  decisions,  will  the 
United  States  be  entitled  to  a  preference  as  creditors  ? — 247 

1.  In  the  case  of  the  death  of  the  debtor  without  sufficient  assets  ; 
2.  bankruptcy,  or  legal  insolvency,  manifested  by  some  act  pursuant  to 
law ;  3.  a  voluntary  assignment  by  the  insolvent  of  all  his  property,  to 
pay  his  debts  ;  4.  in  the  case  of  an  absent,  concealed,  or  absconding 
debtor  whose  effects  are  attached. 

3.  What  is  the  law  as  to  the  fiscal  lien  of  the  United  States? — 248 

It  was  held,  in  Harris  v.  Dennie,  (3  Pet.  U.  S.  Rep.  292,)  that  the 
government  had  a  lien  on  goods  imported,  for  the  payment  of  duties  accru- 
ing on  them,  and  not  secured  by  bond  ;  and  that  the  United  States  were  enti- 
tled to  the  custody  of  the  goods  until  the  duties  were  paid  or  secured, 
and  any  attachment  of  the  goods  under  state  process,  during  the  custody, 
was  void.  On  the  other  hand,  it  was  decided,  that  the  government  had 
no  general  lien  on  the  goods  of  the  importer  held  for  duties  due  by  him 
for  other  importations. 

4.  What  is  the  judicial  construction  upon  the  act  of  Congress  creating 
a  bank  ? — 254 

That  the  law  creating  the  bank  of  the  United  States,  was  one  made 
in  pursuance  of  the  constitution  ;  and  that  the  branches  of  the  national 
bank,  proceeding  from  the  same  stock,  and  being  conducive  to  the  com- 
plete accomplishment  of  the  object,  were  equally  constitutional.  The 
supreme  court  was  afterwards  led,  in  some  degree,  to  review  this  deci- 
sion, in  the  case  of  Osborn  v.  The  United  States  Bank,  (9  Wheaton,  859,) 
and  they  there  admitted  that  congress  could  not  create  a  corporation  for 
its  own  sake,  or  for  private  purposes.  The  whole  opinion,  in  the  case  of 
M'Citlloch  v.  The  State  of  Maryland,  was  founded  on,  and  sustained  by, 
the  idea,  that  the  bank  was  an  instrument  which  was  necessary  and  proper 
for  carrying  on  the  government.  It  was  created  for  a  national  purpose 
only,  though  it  was  undoubtedly  capable  of  transacting  private  as  well  as 
public  business. 

5.  What  is  the  construction  of  the  powers  of  congress  relative  to  taxa- 
tion ? — 256 

It  was  decided  in  Loughborough  v.  Blake,  (5  Wheaton,  317,)  that  the 
power  to  tax  extended  equally  to  all  places  over  which  the  government 
extended.  But  the  court  held,  that  congress  are  not  bound,  though  they 
may,  in  their  discretion,  extend  a  direct  tax  to  all  the  territories  as  well  as 


LEG.    XII.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  43 

to  the  states.  A  direct  tax,  if  laid  at  all,  must  be  laid  on  every  state  con- 
formably to  the  census,  and  therefore  congress  has  no  power  to  exempt 
any  state  from  its  due  share  of  the  burthen.  But  it  is  understood  that 
congress  are  under  no  necessity  of  extending  a  tax  to  the  unrepresented 
District  of  Columbia,  and  the  territories  ;  though,  if  they  be  taxed,  then 
the  constitution  gives  the  rule  of  assessment. 

6.  What  is  the  rule  as  to  the  national  right  of  domain  ? — 257 

That  congress  have  the  exclusive  right  of  pre-emption  to  all  Indian 
lands  lying  within  the  territories  of  the  United  States.  The  Indians 
have  the  right  of  occupancy,  and  the  United  States  possess  the  legal 
title,  subject  to  that  occupancy,  and  with  an  absolute  right  to  extinguish 
the  Indian  title  of  occupancy  either  by  conquest  or  purchase. 

7.  Upon  what  was  the  title  of  the   European  nations,  which  passed  to 
the  United  States,  founded  ? — 258 

Discovery,  and  conquest ;  and,  by  the  European  customary  law  of 
nations,  prior  discovery  gave  this  title  to  the  soil,  subject  to  the  possessory 
right  of  the  natives.  The  principle  is,  that  the  Indians  are  to  be  consid- 
ered merely  as  occupants,  to  be  protected  while  in  peace  in  the  possess- 
ion of  their  lands,  but  to  be  deemed  incapable  of  transferring  the  absolute 
title  to  any  other  than  the  sovereign  of  the  country. 

8.  What  is  the  effect  given  to  public  records  ? — 260 

In  pursuance  of  the  constitution  of  the  United  States,  congress  by 
the  act  of  May  26,  1790,  provided  the  mode  by  which  records  and  judicial 
proceedings  should  be  authenticated,  and  then  declared,  that  they  should 
have  such  faith  and  credit  given  to  them  in  every  court  within  the  United 
States,  as  they  had  by  law  or  usage  in  the  courts  of  the  state  from  whence 
the  records  were  taken.  Under  this  act  it  was  decided,  in  the  case  of 
Mills  v.  Duryee,  (7  Cranch,  481,)  that  if  a  judgment,  duly  authenticated, 
had,  in  the  state  court  from  whence  it  was  taken,  the  faith  and  credit  of 
the  highest  nature,  viz.  record  evidence,  it  must  have  the  same  faith  and 
credit  in  every  other  court.  A  judgment  is,  therefore,  conclusive  in  every 
other  state,  if  a  court  of  the  particular  state  where  it  was  rendered,  would 
hold  it  conclusive. 

9.  What  is  the  law  respecting  the  militia  ? — 261 

That  congress  have  authority  to  provide  for  calling  forth  the  militia 
to  execute  the  laws  of  the  Union,  to  suppress  insurrections,  and  to  repel 
invasions  ;  and  to  provide  for  organizing  and  disciplining  the  militia,  and 
for  governing  such  part  of  them  as  may  be  employed  in  the  service  of 
the  United  States  ;  reserving  to  the  states,  respectively,  the  appointment  of 
the  officers,  and  the  authority  of  training  the  militia,  according  to  the  dis- 
cipline prescribed  by  congress.  The  president  of  the  United  States  is 
the  commander  of  the  militia,  when  called  into  actual  service. 


44  KENT'S  COMMENTARIES,  [VOL.  i. 

10.  What  was  the  decision  in  the  case  of  Martin  v.  Mott,  (12  Wheaton, 
19,)  in  1827?— 265 

In  that  case  it  was  decided  and  settled  by  the  supreme  court  of  the 
United  States,  that  it  belonged  exclusively  to  the  president  to  judge  when 
the  exigency  arises,  in  which  he  had  authority  under  the  constitution  to 
call  forth  the  militia,  and  that  his  discretion  was  conclusive  upon  the 
subject. 


LECTURE     XIII. 
OF  THE  PRESIDENT. 

1.  What  personal  qualifications  must  the  president  possess? — 273 

The  constitution  requires  that  he  should  be  a  natural  born  citizen  of 
the  United  States,  or  a  citizen  at  the  time  of  the  adoption  of  the  consti- 
tution, and  that  he  have  attained  the  age  of  thirty-five  years,  and  have 
been  fourteen  years  a  resident  within  the  United  States. 

2.  In  what  manner  is  the  president  appointed  ? — 275 

The  constitution  has  confided  the  power  of  electing  the  president  to 
a  small  body  of  electors,  appointed  in  each  state,  under  the  direction  of 
the  legislature.  It  has  declared  that  congress  may  determine  the  time  of 
choosing  the  electors,  and  the  day  on  which  they  shall  vote,  and  that  the 
day  of  election  shall  be  the  same  in  every  state.  It  has  also  declared  that 
the  number  of  electors  in  each  state  shall  be  equal  to  the  whole  number 
of  senators  and  representatives  which  the  state  is  entitled  to  send  to  con- 
gress. The  electors  meet  in  their  respective  states,  at  a  place  appointed 
by  the  legislature  thereof,  on  the  first  Wednesday  in  December,  in  every 
fourth  year  succeeding  the  last  election,  and  vote  by  ballot  for  president 
and  vice-president.  They  name  in  their  ballots  the  person  voted  for  as 
president,  and,  in  distinct  ballots,  the  person  voted  for  as  vice-president ; 
and  they  make  distinct  lists  of  all  persons  voted  for  as  president,  and  of 
all  persons  voted  for  as  vice-president,  and  of  the  number  of  votes  for 
each,  which  lists  they  sign,  and  certify  and  transmit,  sealed,  to  the  seat  of 
government  of  the  United  States,  directed  to  the  president  of  the  senate. 
The  votes  must  be  delivered  to  the  president  of  the  senate  before  the  first 
Wednesday  of  January  next  ensuing  the  day  of  election.  The  president 
of  the  senate,  on  the  second  Wednesday  of  February  succeeding  every 
meeting  of  the  electors,  in  the  presence  of  both  houses  of  congress, 
opens  all  the  certificates,  and  the  votes  are  then  to  be  counted.  The  presi- 
dent of  the  senate  counts  the  votes.  The  person  having  the  greatest 


LEG.  XIV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  45 

number  of  votes  of  the  electors  for  president,  is  president,  if  such  number 
be  a  majority  of  the  whole  number  of  electors  appointed  ;  but  if  no  person 
have  such  majority,  then,  from  the  persons  having  the  highest  number,  not 
exceeding  three,  on  the  list  of  those  voted  for  as  president,  the  house  of 
representatives  shall  choose  immediately,  by  ballot,  the  president.  But 
in  choosing  the  president,  the  votes  shall  be  taken  by  states,  the  represen- 
tation of  each  state  having  one  vote.  The  person  having  the  greatest 
number  of  votes  as  vice  president,  is  vice-president,  if  such  number  be  a 
majority  of  the  whole  number  of  the  electors  appointed  ;  and  if  no  per- 
son have  a  majority,  then,  from  the  two  highest  numbers  on  the  list,  the 
senate  shall  choose  the  vice-president. 

3.  What  are  the  powers  of  the  president  ? — 282 

He  is  commander  in  chief  of  the  army  and  navy  of  the  United  States, 
and  of  the  militia  of  the  several  states,  when  called  into  actual  service  of 
the  Union.  The  president  has  also  power  to  grant  reprieves  and  pardons 
for  offences  against  the  United  States,  except  in  cases  of  impeachment. 
He  has  also  the  power,  by  and  with  the  advice  and  consent  of  the  senate, 
to  make  treaties,  provided  two-thirds  of  the  senators  present  concur.  The 
president  is  the  efficient  power  in  the  appointment  of  the  officers  of  the 
government.  He  is  to  nominate,  and,  with  the  advice  and  consent  of  *he 
senate,  to  appoint  ambassadors,  or  public  ministers  and  consuls,  the  judges^ 
of  the  supreme  court,  and  all  other  officers  whose  appointments  are  not 
otherwise  provided  for  in  the  constitution. 

4.  How  may  the  president  be  removed  from  office  ? — 289 

By  impeachment.  The  president  as  well  as  all  other  officers  of  the 
United  States,  may  be  impeached  by  the  house  of  representatives,  for 
treason,  bribery,  and  other  high  crimes  and  misdemeanors,  and,  upon  con- 
viction by  the  senate,  removed  from  office. 


LECTURE    XIV. 
OF  THE  JUDICIARY  DEPARTMENT. 

1.  What  power  interferes  more  visibly  and  uniformly,  than  any  other 
part  of  government,  with  all  the  interesting  concerns  of  social  life  ? — 290 

The  judiciary  power.  Personal  security  and  private  property,  rest 
entirely  upon  the  wisdom,  the  stability,  and  the  integrity  of  the  courts 
of  justice. 


46  KENT'S  COMMENTARIES,  [VOL.  i. 

2.  In  what  does  the  constitution   declare  the  judicial  power  of  the 
United  States  shall  be  vested  ? — 290 

In  one  supreme  court,  and  such  inferior  courts  as  congress  may  from 
time  to  time  ordain  and  establish. 

3.  What  is  the  term  during  which  the  judges  hold  their  office  ? — 292 
During  good  behaviour. 

4.  What  is  the  extent  of  the  judicial  power  ? — 295 

It  extends  to  all  cases  in  law  and  equity  arising  under  the  constitu- 
tion, the  laws  and  treaties  of  the  Union ;  to  all  cases  affecting  ambassa- 
dors, or  other  public  ministers,  and  consuls  ;  to  all  cases  of  admiralty  and 
maritime  jurisdiction  ;  to  controversies  between  two  or  more  states  ;  to 
controversies  between  a  state,  when  plaintiff,  and  the  citizens  of  another 
state,  or  to  foreign  citizens  or  subjects  ;  to  controversies  between  citizens 
of  different  states,  and  between  citizens  of  the  same  state,  claiming  lands 
under  grants  of  different  states  ;  and  between  a  state,  or  citizens  thereof, 
and  foreign  states,  and  between  citizens  and  foreigners. 

5.  What  is  provided  in  the  amendment  of  1794  ? — 297 

That  the  judicial  power  of  the  United  States  should  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States,  by  citizens  of  another  state,  or  by  citizens  or 
subjects  of  any  foreign  state.  The  inhibition  applies  only  to  citizens  or 
subjects,  and  does  not  extend  to  suits  by  a  state,  or  foreign  states  or 
powers. 

6.  Of  how  many  judges  does  the  supreme  court  consist? — 298 

Of  one  chief  justice,  and  six  associate  justices,  any  four  of  whom 
make  a  quorum  ;  and  it  holds  one  term  annually,  at  the  seat  of  government, 
commencing  on  the  second  Monday  in  January. 

7.  In  what  cases  has  the  supreme  court  exclusive  jurisdiction  ? — 298 

In  all  controversies  of  a  civil  nature,  where  a  state  is  a  party,  except 
in  suits  by  a  state  against  one  or  more  of  its  citizens,  or  against  citizens 
of  other  states,  or  aliens,  in  which  cases  it  has  original,  but  not  exclusive 
jurisdiction.  It  has  also,  exclusively,  all  such  jurisdiction  of  suits,  or 
proceedings  against  ambassadors,  or  other  public  ministers,  or  their  do- 
mestics or  servants,  as  a  court  of  law  can  have  or  exercise,  consistently 
with  the  law  of  nations  ;  and  original,  but  not  exclusive  jurisdiction,  of  all 
suits  brought  by  ambassadors  or  other  public  ministers,  or  in  which  a 
consul  or  vice-consul  shall  be  a  party.  The  supreme  court  was  also 
clothed  by  the  constitution  "  with  appellate  jurisdiction,  both  as  to  law 
and  fact,  with  such  exceptions  and  regulations  as  congress  should  make." 


LEG.   XIV.]  REDUCED    TO    QUESTIONS  AND    ANSWERS.  47 

8.  In  what  cases  has  the  supreme  court  appelate  jurisdiction  ? — 299 

By  the  judiciary  act  of  1789,  appeals  lie  to  this  court  from  the  cir- 
cuit courts,  and  the  courts  of  the  several  states.  Final  judgments  and 
decrees,  in  civil  actions,  and  suits  in  equity  in  the  circuit  courts  of  the 
United  States,  whether  brought  by  original  process,  or  removed  there, 
from  the  state  courts,  or  by  appeal  from  the  district  courts,  in  cases  where 
the  matter  in  dispute  exceeds  2,000  dollars,  exclusive  of  costs,  may  be 
re-examined,  by  writ  of  error,  and  reversed  or  affirmed,  by  the  supreme 
court.  Final  judgments  and  decrees  in  the  circuit  courts,  in  cases  of 
admiralty  and  maritime  jurisdiction,  and  of  prize  or  no  prize,  where  the 
matter  in  dispute  exceeds  2,000  dollars,  exclusive  of  costs,  may  be  re- 
viewed on  appeal  in  the  supreme  court. 

9.  Into  how  many  circuits  are  the  United  States  divided  ? — 301 
Seven. 

10.  In  what  cases  have  the  circuit  courts  original  jurisdiction  ? — 302 

They  have  original  cognizance,  concurrent  with  the  state  courts,  of  all 
suits  of  a  civil  nature  at  common  law  or  in  equity,  where  the  matter  in 
dispute  exceeds  500  dollars,  exclusive  of  costs,  and  the  United  States  are 
plaintiffs,  or  an  alien  is  a  party,  or  the  suit  is  between  a  citizen  of  the 
state  where  the  suit  is  brought,  and  a  citizen  of  another  state.  They 
have  likewise  exclusive  cognizance,  except  in  certain  cases,  of  all  crimes 
and  offences  cognizable  under  the  laws  of  the  United  States,  exceeding 
the  degree  of  ordinary  misdemeanors,  and  of  them  they  have  concurrent 
jurisdiction  with  the  district  courts.  They  have  also,  original  jurisdiction 
in  equity  and  at  law  of  all  suits  arising  under  the  law  of  the  United  States 
relative  to  copyrights,  and  those  growing  out  of  inventions  and  discoveries, 
and  to  protect  such  rights  by  injunction.  The  jurisdiction  in  the  case  of 
copyrights  applies,  without  regard  to  the  character  of  the  parties,  or  the 
amount  in  dispute. 

1 1 .  In  what  cases  have  the  circuit  courts  appelate  jurisdiction  ? — 302 

From  all  final  decrees  and  judgments  in  the  district  courts,  where 
the  matter  in  dispute,  exclusive  of  costs,  exceeds  50  dollars.  If  the 
remedy  be  on  final  decrees  in  the  district  courts,  in  cases  of  admiralty 
and  maritime  jurisdiction,  it  is  by  appeal ;  and  if  on  final  judgments  in 
civil  cases,  it  is  by  writ  of  error.  And  if  any  suit  be  commenced  in  a 
state  court  against  an  alien,  or  by  a  citizen  of  the  state  in  which  the  suit 
is  brought  against  a  citizen  of  another  state,  or  against  a  citizen  of  the 
same  state  claiming  lands  under  a  grant  from  another  state,  and  the  matter 
in  dispute  exceeds  500  dollars,  exclusive  of  costs,  the  defendant,  on 
giving  security  may  remove  the  cause  to  the  next  circuit  court. 

12.  In  what  cases  have  the  district  courts  jurisdiction  ? — 304 

They  have  exclusive  of  the  state  courts,  cognizance  of  all  the  lesser 


48  KENT'S  COMMENTARIES,  [VOL.  i. 

crimes  and  offences  cognizable  under  the  authority  of  the  United  States, 
and  committed  within  their  respective  districts,  or  upon  the  high  seas, 
and  which  are  punishahle  by  fine  not  exceeding  500  dollars,  by  imprison- 
ment not  exceeding  6  months,  or  when  corporal  punishment,  not  exceed- 
ing 30  stripes,  is  to  be  inflicted.  They  have  also  exclusive  original  cog- 
nizance of  all  civil  causes  of  admiralty  and  maritime  jurisdiction  of  sei- 
zures under  impost,  navigation,  or  trade  laws  of  the  United  States, 
where  the  seizures  are  made  upon  the  high  seas,  or  on  waters  within 
their  districts  navigable  from  the  sea  with  vessels  of  ten  or  more  tons 
burthen  ;  and  also  of  all  seizures  made  under  the  laws  of  the  United 
States  ;  and  also  of  all  suits  for  penalties  and  forfeitures  incurred  under 
those  laws.  They  have  also  cognizance,  concurrent  with  the  circuit  courts 
and  state  courts,  of  causes  where  an  alien  sues  for  a  tort  committed  in  vio- 
lation of  the  law  of  nations,  or  a  treaty  of  the  United  States  ;  and  of  all 
suits  at  common  law,  in  which  the  United  States  are  plaintiffs,  and  the 
matter  in  dispute  amounts,  exclusive  of  costs,  to  100  dollars.  They  have 
jurisdiction  likewise,  exclusive  of  the  courts  of  the  several  states.,  of  all 
suits  against  consuls,  except  for  offences  above  the  magnitude  which  has 
been  mentioned.  They  have  also  cognizance  of  complaints,  by  whom- 
soever instituted,  in  cases  of  captures  made  within  the  waters  of  the 
United  States,  or  within  a  marinele  ague  of  its  coasts  ;  and  to  repeal  pa- 
tents unduly  obtained. 

13.  What  authority  have  the  superior  courts  of  the  several  territories  ? 
—305 

In  those  territories  in  which  there  is  no  district  court  established,  they 
have  the  enlarged  authority  of  the  circuit  courts,  subject  to  revision  by 
writ  of  error,  and  appeal  to  the  supreme  court. 

14.  What  restrictions  are  placed  upon  the  judges  of  the  federal  courts  ? 
—305 

The  district  and  territorial  judges  are  required  to  reside  within  their 
respective  jurisdictions,  and  no  federal  judge  can  act  as  counsel,  or  be 
engaged  in  the  practice  of  the  law. 


LECTURE    XV. 

OF  THE  ORIGINAL  AND  APPELLATE  JURISDICTION 
OF  THE  SUPREME  COURT. 

1.  What  is  the  rule,  laid  down  by  the  supreme  court,  on  the  subject  of 
jurisdiction  on  account  of  the  interest  that  a  state  has  in  the  controversy  ? 
—323 


LEC.    XVI.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  49 

That  it  must  be  a  case  in  which  a  state  is  nominally  the  party  ;  and 
it  is  not  sufficient  that  the  state  may  be  consequentially  affected,  as 
being  bound  to  make  retribution  to  her  grantee  upon  the  event  of  eviction. 

2.  What  is  the  rule  as  to  the  appellate  jurisdiction  of  the  supreme  court  ? 
—324 

That  it  exists  only  in  cases  in  which  it  is  affirmatively  given.  In 
the  case  of  Wiscart  v.  Dauchy,  (3  Dallas,  321,)  the  supreme  court  consid- 
ered that  its  whole  appellate  jurisdiction  depended  upon  the  regulations  of 
congress,  as  that  jurisdiction  was  given  by  the  constitution  in  a  qualified 
manner. 


LECTURE    XVI. 

OF  THE  JURISDICTION  OF  THE  FEDERAL  COURTS, 

IN  RESPECT  TO  THE  COMMON  LAW,  AND  IN 

RESPECT  TO  PARTIES. 

1.  What  are  the  decisions  upon  the  right  of  the  federal  courts  to  com- 
mon law  jurisdiction,  in  criminal  matters  1 — 339 

The  decisions  are,  that  they  have  no  such  jurisdiction. 

2.  How  far  have  the  supreme    court  admitted   the   application  of  the 
common  law  to  civil  cases  in  the  federal  courts? — 341 

In  Robinson  \.  Campbell,  (3  Wheaton,  212,)  the  supreme  court  went 
far  toward  the  admission  of  the  existence  and  application  of  the  common 
law  to  civil  cases  in  the  federal  courts. 

3.  What  is  it  necessary  to  set  forth  on  the  record  in  order  to  give 
jurisdiction  where  an  alien  is  a  party  ? — 343 

In  Bingham  v.  Cabot,  (3  Dallas,  382,)  the  supreme  court  held,  that  it 
was  necessary  to  set  forth  the  citizenship  of  the  respective  parties,  or  the 
alienage  where  a  foreigner  was  concerned,  by  positive  averments ;  and 
that  if  there  was  not  a  sufficient  allegation  for  that  purpose  on  the  record, 
no  jurisdiction  of  the  suit  would  be  sustained.  It  is  necessary,  therefore, 
where  the  defendant  appears  to  be  a  citizen  of  one  state,  to  show,  by 
averment,  that  the  plaintiff  is  a  citizen  of  some  other  state,  or  an  alien ; 
or,  if  the  suit  be  upon  a  promissory  note,  by  the  endorsee,  to  show  that  the 
original  payee  was  so. 
7 


50  KEXT'S  COMMENTARIES,  [VOL.  I. 

4.  What  is  the  rule  in  cases  of  joint  plaintiffs  or  defendants  ? — 345 

In  Strawbridge  v.  Curtiss,  (3  Cranch,  267,)  that  where  the  interest 
was  joint  and  two  or  more  persons  concerned  in  that  interest,  as  joint 
plaintiffs,  or  joint  defendants,  each  of  them  must  be  competent  to  sue,  or 
be  liable  to  be  sued,  in  the  federal  courts  ;  and  the  suit  was  dismissed 
in  that  case,  because  some  of  the  plaintiffs  and  defendants  were  citizens 
of  the  same  state. 

5.  What  is  the  rule  where  a  corporation  is  a  party? — 346 

It  was  decided  in  the  cases  of  the  Hope  Insurance  Company  v. 
Boardman,  and  of  the  Bank  of  the  United  States  v.  Deveaux,  (5  Crunch, 
57,  61,)  that  a  corporation  aggregate  was  not,  in  its  corporate  capa- 
city, a  citizen,  and  that  its  right  to  litigate  in  the  federal  courts  depend- 
ed upon  the  character  of  the  individuals  who  composed  the  body  politic, 
and  which  character  must  appear  by  proper  averments  upon  the  record. 
If  any  of  the  stockholders  are  citizens  of  the  same  state  with  the  defen- 
dant, the  federal  courts  have  no  jurisdiction. 

6.  What  is  the  rule  in  regard  to  trustees  ? — 348 

That  a  trustee  who  holds  the  legal  interest,  is  competent  to  sue  in 
right  of  his  own  character  as  a  citizen  or  alien,  as  the  case  may  be,  in 
the  federal  courts,  and  without  reference  to  the  character  of  his  cestui  que 
trust,  unless  he  was  created  trustee  for  the  fraudulent  purpose  of  giving 
jurisdiction.  This  rule  applies  to  executors  and  administrators,  who  are 
considered  as  the  real  parties  in  interest ;  but  it  does  not  apply  to  the  gen- 
eral assignee  of  an  insolvent  debtor.  The  llth  section  of  the  judiciary 
act  will  not  permit  jurisdiction  to  vest  by  the  assignment  of  a  chose  in 
action,  (cases  of  foreign  bills  of  exchange  excepted.)  A  vested  jurisdic- 
tion is  not  devested  by  a  subsequent  change  of  domicil. 

7.  What  is  the  rule  of  proceeding  where  a  state  is  interested,  and  not 
a  party  on  record  ? — 350 

In  the  case*  of  Osborn  v.  The  Bank  of  the  United  States,  (9  Wheaton, 
783)  the  court  decided,  that  the  circuit  courts  had  lawful  jurisdiction,  un- 
der the  act  of  congress  incorporating  the  national  bank,  of  a  bill  in  equity 
brought  by  the  bank  for  the  purpose  of  protecting  its  franchises,  which 
were  threatened  by  the  state  of  Ohio  ;  and  that  as  the  state  itself  could 
not  be  made  a  party  defendant,  the  suit  might  be  maintained  against  the 
officers  and  agents  of  the  state  who  were  intrusted  with  the  execution  of 
such  laws. 


LEG.    XVII.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  51 


LECTURE    XVII. 

OF  THE  DISTRICT  AND  TERRITORIAL  COURTS  OF 
THE  UNITED  STATES. 

1 .  What  is  the  distinction  in  England  between  the  instance  and  the 
prize  court  of  admiralty  ?  — 353 

The  former  is  the  ordinary  admiralty  court,  but  the  latter  is  a  special 
and  extraordinary  jurisdiction  ;  and  although  it  be  exercised  by  the  same 
person,  it  is  in  no  way  connected  with  the  former,  either  in  its  origin,  its 
mode  of  proceeding,  or  the  principles  which  govern  it.  To  constitute  the 
prize  court,  or  to  call  it  into  action  in  time  of  war,  a  special  commission 
issues,  and  the  court  proceeds  summarily,  and  is  governed  by  general  prin- 
ciples of  policy,  and  the  law  of  nations. 

2.  Over  what  cases  have  the  prize  courts  jurisdiction  ?  —  356 

The  ordinary  prize  jurisdiction  extends  to  all  captures  in  war,  made 
on  the  high  seas.  I  know  of  no  other  definition  of  prize  goods,  said  Sir 
Willian  Scott,  in  the  case  of  the  Two  Friends,  (1  Rob.  Rep.  228,)  than 
that  they  are  goods  taken  on  the  high  seas,  jure  belli,  out  of  the  hands  of 
the  enemy.  The  prize  jurisdiction  also  extends  to  captures  in  foreign 
ports  and  harbours,  and  to  captures  made  on  land  by  naval  forces,  and  upon 
surrenders  to  naval  forces,  either  solely,  or  by  joint  operation  with  land 
forces.  It  extends  to  captures  made  in  rivers,  ports,  and  harbours,  of  the 
captor's  own  country.  The  prize  court  extends  also  to  all  ransom  bills 
upon  captures  at  sea,  and  to  money  received  as  a  ransom  or  commutation, 
on  a  capitulation  to  naval  forces  alone,  or  jointly  with  land  forces. 

3.  What  is  the  rule  in  cases  of  freight  1 — 359 

That  prize  courts  have  exclusive  jurisdiction,  and  an  enlarged  discre- 
tion, as  to  the  allowance  of  freight,  damages,  expenses,  and  costs,  in  all 
cases  of  captures,  and  as  to  all  torts,  and  personal  injuries,  and  ill  treat- 
ments, and  abuse  of  power,  connected  with  capture  jure  belli ;  and  the 
courts  will  frequently  award  large  and  liberal  damages  in  those  cases. 

4.  How  far  does  the  criminal  jurisdiction  of  the  district  courts  extend  ? 
—360 

To  the  cognizance  of  all  crimes  and  offences  cognizable  under  the 
authority  of  the  United  States,  and  committed  within  their  districts,  or 
upon  the  high  seas,  where  only  a  moderate  corporal  punishment,  or  fine, 
or  imprisonment  is  to  be  inflicted. 

5.  What  forms  the  dividing  line  between  the  admiralty  and  common 
law  jurisdiction  of  the  district  court  1 — 375 


52  KENT'S  COMMENTARIES,  [VOL.  i. 

In  seizures  made  on  land,  the  district  court  proceeds  as  a  court  of 
common  law,  according  to  the  course  of  the  English  exchequer,  on  infor- 
mation in  rem,  and  the  trial  of  issues  of  fact  is  to  be  by  jury.  But  in 
cases  of  seizures  on  waters  navigable  from  the  sea,  by  vessels  of  ten  or 
more  tons  burthen,  the  court  proceeds  as  an  instance  court  of  admiralty, 
by  libel  in  rem,  and  the  trial  is  by  the  court. 

6.  How  far  does  the  jurisdiction  of  the  admiralty,  as  an  instance  court 
extend  ?— 378 

In  England,  the  instance  court  of  admiralty,  takes  cognizance  only 
of  crimes  committed,  and  things  done,  and  contracts  not  under  seal,  made 
super  ahum  mare,  and  without  the  body  of  a  county.  The  admiralty  has 
cognizance  of  maritime  hypothecations  of  vessels  and  goods  in  foreign 
ports,  for  repairs  done,  or  necessary  supplies  furnished.  Suits  for  sea- 
men's wages,  are  cognizable  in  the  admiralty,  though  the  contract  be  made 
upon  land,  provided  it  be  not  a  contract  under  seal. 


LECTURE    XVIII. 

OF  THE  CONCURRENT  JURISDICTION  OF  THE 
STATE  GOVERNMENTS. 

1.  What  is  the  observation  of  the  Federalist  upon  the  subject  of  con- 
current rights  ? — 387 

That  the  state  governments  would  clearly  retain  all  those  rights  of 
sovereignty  which  they  had  before  the  adoption  of  the  constitution  of  the 
United  States,  and  which  were  not  by  that  constitution  exclusively  dele- 
gated to  the  Union. 

2.  What  is  the  doctrine  of  the  supreme  court  on  that  point  ? — 388 

In  Sturges  \.  Crowninshield,  (3  Dallas,  386,)  the  chief  justice  ob- 
served, that  the  powers  of  the  states  remained,  after  the  adoption  of  the 
constitution,  what  they  were  before,  except  so  far  as  they  had  been 
abridged  by  that  instrument.  The  mere  grant  of  a  power  to  congress  did 
not  imply  a  prohibition  on  the  states  to  exercise  that  power.  Thus,  con- 
gress are  authorized  to  establish  uniform  laws  on  the  subject  of  bankruptcy, 
but  the  states  may  pass  bankrupt  laws,  provided  there  be  no  act  of  con- 
gressi  in  force  establishing  a  uniform  law  on  that  subject.  It  is  not  the 
mere  resistance  of  the  power,  but  it  is  the  exercise  of  that  power,  which 
is  incompatible  with  the  exercise  of  the  same  by  the  states.  In  Houston 


LEG.  XVIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  53 

v.  Moore,  (5  Wheaton,  1,)  the  doctrine  of  the  court  was,  that  when  con- 
gress exercised  their  powers  upon  any  given  subject,  the  states  could  not 
enter  upon  the  same  ground,  and  provide  for  the  same  objects.  The  will 
of  congress  may  be  discovered  as  well  by  what  they  have  not  declared,  as 
by  what  they  have  expressed.  It  is  not  a  true  and  constitutional  doctrine, 
that  in  cases  where  the  state  governments  have  a  concurrent  power  of 
legislation  with  the  national  government,  they  may  legislate  upon  any 
subject  on  which  congress  have  acted,  provided  the  two  laws  are  not  in 
their  operation  contradictory  and  repugnant  to  each  other. 

3.  How  far  can  the  process  of  the  federal  courts  be  controlled  by  the 
laws  of  the  several  states  ? — 394 

In  Weyman  v.  Southard,  (10  Wheaton,  1,)  it  was  decided,  that  con- 
gress had  exclusive  authority  to  regulate  proceedings  and  executions  in  the 
federal  courts,  and  that  the  states  had  no  authority  to  control  such  process  ; 
and,  therefore,  executions  by  fieri  facias,  in  the  federal  courts,  were  not 
subject  to  the  checks  created  by  the  Kentucky  statute,  forbidding  sales 
on  execution  of  land  for  less  than  three-fourths  of  its  appraised  value. 

4.  What  is  the  rule  laid  down  by  the  Federalist,  as  to  concurrent  judi- 
cial jurisdiction  of  the  states  ? — 395 

That  the  state  courts  retained  all  pre-existing  authority,  or  the  juris- 
diction they  had  before  the  adoption  of  the  constitution,  except  where  it 
was  taken  away,  either  by  an  exclusive  authority  granted  in  express  terms 
to  the  Union,  or  in  a  case  where  a  particular  authority  was  granted  to  the 
Union,  with  which  a  similar  authority  in  the  states  would  be  utterly  in- 
compatible. 

5.  In  what  cases  do  the  state  courts  not  have  concurrent  jurisdiction  ? 
—398 

They  can  exercise  no  jurisdiction  whatever  over  crimes  and  offences 
against  the  United  States,  and  all  suits,  penalties,  and  forfeitures  unless 
where,  in  particular  cases,  the  laws  otherwise  provide. 

6.  What  is  the  effect  of  a  sentence  in  one  jurisdiction  in  cases  of  con- 
current jurisdiction  ? — 399 

That  the  sentence  of  either  court,  whether  of  conviction  or  acquittal, 
may  be  pleaded  in  bar  of  a  prosecution  before  the  other. 

7.  What  is  the  doctrine  as  to  the  power  of  congress  to  compel  a  state 
court  to  entertain  jurisdiction  ? — 402 

That  congress  cannot  compel  a  state  court  to  entertain  jurisdiction  in 
any  case.  It  only  permits  state  courts  which  are  competent  for  the  pur- 
pose, and  have  an  inherent  jurisdiction  adequate  to  the  case,  to  entertain 
suits  in  the  given  cases;  and  they  do  not  become  inferior  courts  in  the 
sense  of  the  constitution,  because  they  are  not  ordained  by  congress. 


54  KENT'S  COMMENTARIES,  [VOL.  i. 

The  state  courts  are  left  to  infer  their  own  duty  from  their  own  state 
authority  and  organization  ;  but  if  they  do  voluntarily  entertain  jurisdiction 
of  causes  cognizable  under  the  laws  of  the  United  States,  they  assume  it 
upon  the  condition  that  the  appellate  jurisdiction  of  the  federal  courts 
shall  apply. 


LECTURE    XIX. 

CONSTITUTIONAL   RESTRICTIONS    ON   THE 
POWERS  OF  THE  SEVERAL  STATES. 

1.  What  are  the  principal  constitutional  restrictions  ? — 406 

That  no  state  shall  enter  into  any  treaty,  alliance,  or  confederation ; 
grant  letters  of  marque  and  reprisal ;  coin  money ;  emit  bills  of  credit ; 
make  any  thing  but  gold  and  silver  coin  a  tender  in  payment  of  debts ; 
pass  any  bill^of  attainder,  ex  post  facto  law,  or  law  impairing  the  obligation 
of  contracts  ;  or  grant  any  title  of  nobility.  No  state  shall,  without  the 
consent  of  congress,  lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspection  laws  ;  nor 
lay  any  duty  or  tonnage,  keep  troops  or  ships  of  war  in  time  of  peace, 
enter  into  any  agreement  or  compact  with  another  state,  or  with  a  foreign 
power,  or  engage  in  war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay. 

2.  What  is  the  construction  put  upon  the  prohibition  to  issue  bills  of 
credit  ? — 408 

It  is  declared  to  mean  promissory  notes,  or  bills  issued  exclusively 
on  the  credit  of  the  state,  and  for  the  payment  of  which  the  faith  of  the 
state  is  pledged.  The  prohibition  does  not,  therefore,  apply  to  the  notes 
of  a  state  bank,  drawn  on  the  credit  of  a  particular  fund  set  apart  for  that 
purpose.  According  to  the  case  of  Craig  v.  The  State  of  Missouri,  (4 
Peters'  U.  S.  Rep.,  410,)  bills  of  credit  are  defined  to  be  paper  issued  by  a 
state  government,  and  intended  to  circulate  through  the  community  for  its 
ordinary  purposes,  as  money  redeemable  at  a  future  day. 

3.  What  is  the  construction  upon  the  prohibition  to  pass  ex  post  facto 
laws  ? — 408 

In  Colder  v.  Bull,  (3  Dallas,  386,)  it  was  held,  that  the  words  ex  post 
facto  laws  were  technical  expressions,  and  meant  every  law  that  made  an 
act  done  before  the  passing  of  the  law,  and  which  was  innocent  when 
done,  criminal ;  or  which  aggravated  a  crime,  and  made  it  greater  than  it 


LEG.  XIX.]  > REDUCED  TO  QUESTIONS  AND  ANSWERS.  55 

was  when  committed  ;  or  which  altered  the  legal  rules  of  evidence,  and 
received  less  or  different  testimony  than  the  law  required  at  the  time  of 
the  commission  of  he  offence,  in  order  to  convict  the  offender.  In  Fletcher 
v.  Peck,  (6  Cranch,  1  38,)  it  was  observed  than  an  ex  post  facto  law  was 
one  which  rendered  an  act  punishable  in  a  manner  in  which  it  was  not 
punishable  at  the  time  when  it  was  committed. 

4.  What  is  the  rule  as  to  the  control  of  the  state  cowrts  over  the  federal 
courts  ?— 409 

That  the  state  legislatures  cannot  annul  the  judgments,  nor  determine 
the  jurisdiction  of  the  courts  of  the  Union.  No  state  tribunal  can  inter- 
fere with  seizures  of  property  made  by  the  revenue  officers,  under  the 
laws  of  the  United  States. 

5.  How  far  are  persons  engaged  in  the  transportation  of  the  mail,  exempt 
from  the  control  of  state  process  ? — 411 

In  the  case  of  The  United  States  v.  Barney,  (3  HalVs  Law  Journal, 
128,)  the  district  judge  of  Maryland  decided  that,  an  inn-keeper  had  no 
lien  on  a  horse  which  he  had  fed,  and  which  was  employed  in  the  trans- 
portation of  the  mail ;  and  that  a  claim  for  debt  would  not  justify  the  stop- 
ping of  the  mail,  or  the  means  necessary  to  transport  it ;  and  that  even  a 
stolen  horse,  found  in  the  mail  stage  could  not  be  seized  ;  nor  could  the 
driver,  being  in  debt,  be  arrested  in  such  a  way  as  to  obstruct  the  passage 
of  the  mail. 

6.  What  is  the  construction  put  upon  the  prohibition  to  pass  laws  im- 
pairing the  obligation  of  contracts  ? — 413 

The  case  of  Fletcher  v.  Peck,  (6  Cranch,  87,)  first  brought  this  prohib- 
tory  clause  into  direct  discussion.  The  legislature  of  Georgia,  by  act  of 
7  of  January,  1795,  authorized  the  sale  of  a  tract  of  wild  land,  and  a  grant 
was  made  by  letters  patent  in  pursuance  of  the  act,  to  a  number  of  indi- 
viduals, under  the  name  of  the  Georgia  Company.  Fletcher  held  a  deed 
from  Peck  for  a  part  of  this  land,  under  the  patent ;  and  in  the  deed  Peck 
had  covenanted,  that  the  state  of  Georgia  was  lawfully  seized  when  the 
act  was  passed,  and  had  good  right  to  sell,  and  that  the  letters  patent  were 
lawfully  issued,  and  the  title  has  not  since  been  legally  impaired.  The 
action  was  for  a  'breach  of  covenant  ;  and  the  breach  assigned  was,  that 
the  letters  patent  were  void,  for,  that  the  legislature  of  Georgia  by  act  of 
the  13th  Febuary,  1796,  declared  the  preceding  act  to  be  null  and  void, 
as  being  founded  in  fraud  and  corruption.  One  of  the  questions  presented 
to  the  supreme  courtupon  the  case  was,  whether  the  legislature  of  Georgia 
could  constitutionally  repeal  the  act  of  1795,  and  rescind  the  sale  made 
under  it.  The  court  declared,  that  when  a  law  was  in  its  nature  a  con- 
tract, and  absolute  rights  have  vested  under  that  contract,  a  repeal  of  the 
law  could  not  divest  those  rights  nor  annihilate  or  impair  the  title  so  ac- 
quired. A  grant  was  a  contract  within  the  meaning  of  the  constitution. 
The  words  of  the  constitution  were  construed  to  comprehend  equally  ex- 


56  KENT'S  COMMENTARIES,  [VOL.  i. 

ecutory  and  executed  contracts,  for  each  of  them  contains  obligations  bind- 
ing on  the  parties.  A  grant  is  a  contract  executed,  and  a  party  is  always 
estopped  by  his  own  grant.  A  party  cannot  pronounce  his  own  deed  in- 
valid. A  grant  amounts  to  an  extinguishment  of  the  right  of  the  grantor. 
A  grant  from  a  state  is  as  much  protected  by  the  constitution  as  a  grant 
from  one  individual  to  another,  and  the  state  is  as  much  inhibited 
from  impairing  its  own  contracts,  or  a  contract  to  which  it  is  a  party, 
as  it  is  from  impairing  the  obligation  of  contracts  between  two  individ- 
uals. It  was,  accordingly,  declared,  that  the  estate  held  under  the  act 
of  1795,  having  passed  into  the  hands  of  a  bona  fide  purchaser  for  a 
valuable  consideration,  the  state  of  Georgia  was  constitutionally  disabled 
from  passing  any  law  whereby  the  estate  of  the  plaintiff  could  be  legally 
impaired  or  rendered  void.  In  the  case  of  The  State  of  Neio  Jersey  v. 
Wilson,  (7  Crunch,  164,)  it  was  held,  that  if  the  legislature  should  declare 
by  law,  that  certain  lands  to  be  thereafter  purchased  for  the  use  of  the  In- 
dians, should  not  be  subject  to  any  tax,  such  a  legislative  act  amounted  to 
a  contract,  which  could  not  be  recinded  by  a  future  legislature.  In  Terret 
v.  Taylor,  (9  Cranch,  43,)  it  was  held  that,  a  legislative  grant,  compe- 
tently made,  vested  an  indefeasible  and  irrevocable  title.  Nor  can  the 
legislature  repeal  statutes  creating  private  corporations,  or  confirming  to 
them  property  already  acquired,  under  the  faith  of  previous  laws,  and  by 
such  repeal  vest  the  property  in  others,  without  the  consent  or  default  of 
the  corporators.  In  the  case  of  Dartmouth  College  v.  Woodward,  (4 
Wheaton  518,)  it  was  held,  that  the  charter  granted  by  the  British  crown 
to  the  trustees  of  Dartmouth  college  in  1769,  was  a  contract  within  the 
meaning  of  the  constitution,  and  protected  by  it ;  and  that  the  college  was 
a  private  charitable  institution,  not  liable  to  the  control  of  the  legislature ; 
and  that  the  act  of  the  legislature  of  New  Hampshire,  altering  the  charter 
in  a  material  respect,  without  the  consent  of  the  corporation,  was  an  act 
impairing  an  obligation  of  the  charter,  and  consequently  unconstitutional 
and  void. 

In  Green  v.  Biddle,  (8  Wheaton,  1,)  it  was  observed  by  the  court,  that 
the  objection  to  a  law,  on  the  ground  of  its  impairing  the  obligation  of 
contracts,  could  not  depend  upon  the  extent  of  the  change.  Any  devia- 
tion from  its  terms,  by  postponing  or  accelerating  the  period  of  perform- 
ance which  it  prescribes,  imposing  conditions  not  expressed  in  the  con- 
tract, or  dispensing  with  the  performance  of  those  which  are  expressed, 
however  minute  or  apparently  immaterial  in  their  effect  upon  the  contract, 
or  upon  any  part  of  it,  impairs  its  obligation.  The  material  point  decided 
was,  that  a  compact  between  two  states  was  a  contract  within  the  consti- 
tutional prohibition.  In  the  case  of  Sturges  v.  Crowninshield,  (4  Wheaton, 
122,)  the  defendant  was  sued  in  one  of  the  federal  courts  upon  two  pro- 
missory notes  given  in  March,  1811,  and  he  pleaded  his  discharge  under 
an  insolvent  act  of  New  York,  passed  in  April,  1811.  The  chief  justice, 
in  the  opinion  which  he  delivered  on  behalf  of  the  court,  admitted,  that 
until  congress  exercise  the  power  to  pass  uniform  laws  on  the  subject  of 
bankruptcy,  the  individual  states  might  by  law  discharge  debtors  from  im- 
prisonment, for  imprisonment  was  no  part  of  the  contract,  but  only  a 
means  of  coercion.  It  was  also  admitted,  that  they  might  pass  statutes 


LEG.  XIX.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  57 

of  limitation,  for  such  statutes  relate  to  the  remedy,  and  not  to  the  obliga- 
tion of  the  contract.  But  a  law  which  discharged  the  debtor  from  his 
contract  to  pay  a  debt  by  a  given  time,  without  performance,  and  released 
him,  without  payment,  entirely  from  any  future  obligation  to  pay,  impaired, 
because  it  entirely  discharged,  the  obligation  of  that  contract,  and,  con- 
sequently, the  discharge  of  the  defendant,  under  the  act  of  1811,  was  no 
bar  to  the  suit. 

5.  How  is  the  prohibition  to  pass  naturalization  laws  construed  ? — 424 

In  Chirac  v.  Chirac,  (2  Wheaton,  269,)  the  chief  justice  of  the  United 
States  decided,  that  the  power  to  pass  naturalization  laws  was  vested  ex- 
clusively in  congress. 

6.  How  is  the  inability  of  the  states  to  tax  national  property  settled  ? 

—425 

That  the  state  governments  have  no  right  to  tax  any  of  the  consti- 
tutional means  employed  by  the  government  of  the  Union  to  execute  its 
constitutional  powers,  nor  to  retard,  impede,  burden,  or  in  any  manner 
control  the  operations  of  the  constitutional  laws  enacted  by  congress,  to 
carry  into  effect  the  powers  vested  in  the  national  government. 

A  tax  on  loans  made  to  the  United  States  is  unconstitutional. 

7.  What  is  the  rule  as  to  state  jurisdiction  over  places  ceded  to  the 
United  States  ? — 429 

That  the  state  legislatures  lose  all  jurisdiction  over  places  purchased 
by  congress,  by  the  consent  of  the  legislature  of  the  state,  for  the  erection 
of  forts,  dock  yards,  light  houses,  hospitals,  military  academies,  and  other 
needful  buildings. 

8.  What  is  the  construction  put  upon  the  power  of  congress  to  regu- 
late commerce  among  the  states  1 — 431 

That  non-intercourse  and  embargo  laws  are  within  the  powers  of 
congress  ;  and  if  congress  have  the  power,  for  purposes  of  safety,  or  pre- 
paration, or  counteraction,  to  suspend  commercial  intercouse  with  foreign 
nations,  they  are  not  limited  as  to  the  duration,  more  than  as  to  the  manner 
and  extent  of  the  measure. 

It  was  decided  in  the  supreme  court  of  the  United  States  in  Gibbons 
v.  Ogden,  (9  Wheatrm,  1,)  that  the  acts  of  the  legislature  of  New  York, 
granting  to  Livingston  and  Fulton  the  exclusive  navigation  of  the  waters 
of  the  state,  in  vessels  propelled  by  steam,  were  unconstitutional  and  void 
acts,  and  repugnant  to  the  power  given  to  congress  to  regulate  commerce, 
so  far  as  those  acts  went  to  prohibit  vessels  licensed  under  the  laws  of 
congress  for  carrying  on  the  coasting  trade,  from  navigating  the  waters  of 
New  York. 


58  KENT'S  COMMENTARIES,  [VOL.  i. 

LECTURE    XX. 
OF  THE  STATUTE  LAW. 

1.  What  is  municipal  law  ? — 447 

It  is  a  rule  of  civil  conduct  prescribed  by  the  supreme  power  in  a 
state.  It  is  composed  of  written  and  unwritten,  or  statute  and  common  law. 

2.  What  is  statute  law  ? — 447 

It  is  the  express  or  written  will  of  the  legislature,  rendered  authentic 
by  certain  prescribed  forms  and  solemnities. 

3.  What  authority  has  an  act  of  the  English  parliament  ? — 447 

It  is  a  principle  of  the  English  law,  that  an  act  of  parliament,  deliv- 
ered in  clear  and  intelligible  terms,  cannot  be  questioned  in  any  court  of 
justice. 

4.  What  is  the  observation  of  Sir  William  Blackstone  on  this  sub- 
ject ? — 447 

That  it  is  the  exercise  of  the  highest  authority  which  the  kingdom 
acknowledges  on  earth. 

5.  How  is  the  principle  in  the  English  government,  that  parliament  is 
omnipotent,  received  in  the  United  States  ? — 448 

It  does  not  prevail ;  though,  if  there  be  no  constitutional  objection  to 
a  statute,  it  is  with  us  as  absolute  and  uncontrollable  as  laws  flowing 
from  the  sovereign  power  in  any  foreign  country.  But  in  this,  as  in  all 
other  countries  where  there  is  a  written  constitution,  designating  the  pow- 
ers and  duties  of  the  legislative,  as  well  as  of  the  other  departments  of 
government,  an  act  of  the  legislature  may  be  void  as  being  against  the 
constitution.  The  law  with  us  must  conform,  in  the  first  place,  to  the 
constitution  of  the  United  States,  and  then  to  the  subordinate  constitution 
of  its  particular  state,  and  if  it  infringes  either,  it  is  void. 

6.  By  whom  is  the  constitutionality  of  a  law  determined  ? — 449 

By  the  judiciary.  The  courts  of  justice  have  a  right,  and  are  in 
duty  bound,  to  bring  every  law  to  the  test  of  the  constitution,  first,  of  the 
United  States,  and  then  of  their  own  state,  as  the  paramount  and  supreme 
law,  to  which  every  inferior  or  derivative  power  and  regulation  must 
conform. 

7.  How  is  the  constitution  defined?— 449 


LEG.    XX.]  REDUCED    TO    QUESTIONS  AND    ANSWERS.  59 

To  be  the  act  of  the  people,  speaking  in  their  original  character,  and 
defining  the  permanent  conditions  of  the  social  alliance. 

8.  What  was  the  argument  of  the  supreme  court  of  the  United  States, 
in  the  case  of  Marbury  v.  Madison,  (1   Cranch,  137,)  on  the  power  and 
duty  of  the  judiciary  to  disregard  an  unconstitutional  act  of  congress  ? 
—453 

The  question,  said  the  chief  justice,  was,  whether  an  act  repugnant  to 
the  constitution,  can  become  a  law  of  the  land,  and  it  was  one  deeply  inter- 
resting  to  the  United  States.  The  powers  of  the  legislature  are  defined  and 
limited  by  a  written  constitution.  But  to  what  purpose  is  that  limitation,  if 
those  limits  may  at  any  time  be  passed  ?  The  distinction  between  a  govern- 
ment with  limited  and  unlimited  powers  is  abolished,  if  those  limits  do  not 
confine,  the  persons  on  whom  they  are  imposed,  and  if  acts  prohibited,  and 
acts  allowed,  are  of  equal  obligation.  If  the  constitution  does  not  control 
any  legislative  act  repugnant  to  it,  then  the  legislature  may  alter  the  con- 
stitution by  an  ordinary  act.  The  theory  of  every  government,  with  a 
written  constitution,  forming  the  fundamental  and  paramount  law  of  the 
nation,  must,  be,  that  an  act  of  the  legislature  repugnant  to  the  constitution 
is  void.  If  void,  it  cannot  bind  the  courts,  and  oblige  them  to  give  it 
effect ;  for  this  would  be  to  overthrow,  in  fact,  what  was  established  in 
theory,  and  to  make  that  operative  as  law  which  is  not  law.  It  is  the 
province  and  duty  of  the  judicial  department,  to  say  what  the  law  is  ;  and 
if  two  laws  conflict  with  each  other,  to  decide  on  the  operation  of  each. 
So,  if  the  law  be  in  opposition  to  the  constitution,  and  both  apply  to  a  par- 
ticular case,  the  court  must  either  decide  the  case  conformably  to  the  law, 
disregarding  the  constitution,  or  conformably  to  the  constitution,  disregard- 
ing the  law.  If  the  constitution  be  superior  to  an  act  of  the  legislature, 
the  courts  must  decide  between  these  conflicting  rules,  and  how  can  they 
close  their  eyes  on  the  constitution,  and  see  only  the  law  ? 

9.  From  what  time  does  a  statute  take  effect  ?  — 454 

From  its  date,  if  no  time  be  expressed.  But  remedial  statutes  may 
be  of  a  retrospective  nature,  provided  they  do  not  impair  contracts,  or 
disturb  absolute  vested  rights,  and  only  go  to  confirm  rights  already 
existing. 

10.  What  was  the  English  rule  ?— 456 

That  if  no  period  was  fixed  by  the  statute  itself,  it  took  effect  by 
relation,  from  the  first  day  of  the  session  in  which  it.  was  passed.  By  the 
statute  33  Geo.  3.  ch.  13,  it  was  declared,  that  statutes  are  to  have  effect 
only  from  the  time  they  receive  the  royal  assent. 

11.  What  is  the  rule  of  the  code  of  Napoleon  ? — 458 

It  declares  that  laws  are  binding  from  the  moment  their  promulgation 
can  be  known,  and  that  the  promulgation  should  be  considered  as  known 
in  the  department  of  the  imperial  residence  one  day  after  the  promulgation, 


60  KENT'S  COMMENTARIES,  [VOL.  i. 

and  in  each  of  the  other  departments  of  the  French  empire,  after  the  ex- 
piration of  the  same  length  of  time,  augmented  by  as  many  days  as 
there  were  twenty  leagues  between  the  seat  of  government  and  the  place. 

12.  What  is  the  distinction  between  public  and  private  acts  ?— 459 

Generally,,  statutes  are  public  ;  and  a  private  statute  may  be  consid- 
ered rather  as  an  exception  to  a  general  rule.  It  operates  upon  particular 
individuals,  or  upon  private  persons.  It  is  said  not  to  bind,  or  include 
strangers  in  interest  to  its  provisions,  and  they  are  not  bound  to  take  notice 
of  a  private  act,  even  though  there  be  no  saving  clause  of  the  rights  of 
third  persons. 

13.  What  are  the  rules  for  the  interpretation  of  statutes  ! — 460 

It  is  an  established  rule  in  the  exposition  of  statutes,  that  the  intention 
of  the  lawgiver  is  to  be  deduced  from  a  view  of  the  whole,  and  every  part 
of  a  statute,  taken  and  compared  together.  The  real  intention,  when  ac- 
curately ascertained,  will  always  prevail  over  the  literal  sense  of  terms, 
xand  the  reason  and  intention  of  the  lawgiver  will  control  the  strict  letter 
of  the  law,  when  the  latter  would  lead  to  palpable  injustice,  contradiction, 
and  absurdity.  When  the  words  are  not  explicit,  the  intention  is  to  be 
collected  from  the  context,  from  the  occasion,  from  the  necessity  of  the 
law,  from  the  mischief  felt,  arid  the  remedy  in  view.  Several  acts  in  par  i 
tnateria,  and  relating  to  the  same  thing,  are  to  be  taken  together,  and 
compared,  in  the  construction  of  them. 

14.  What  is  the  effect  of  temporary  statutes  ? — 465 

If  an  act  be  penal  and  temporary  by  the  terms  or  nature  of  it,  the 
party  offending  must  be  prosecuted  and  punished  before  the  act  expires, 
or  be  repealed.  Though  the  offence  be  committed  before  the  expiration 
of  the  act,  the  party  cannot  be  punished  after  it  has  expired,  unless  a  par- 
ticular provision  be  made  for  that  purpose.  If  a  statute  be  repealed,  and 
afterwards  the  repealing  clause  is  repealed,  this  revives  the  original  act ; 
and  if  an  act  be  temporary,  and  limited  to  a  number  of  years,  and  before 
the  expiration  of  the  time  it  be  continued  by  another  act,  all  acts  civil  and 
criminal  are  to  be  charged  under  the  authority  of  the  first  act. 

15.  What  is  the  effect  of  a  penalty  prescribed  in  a  statute  ? — 467 

If  a  statute  inflicts  a  penalty  for  doing  an  act,  the  penalty  implies  a 
prohibition,  and  the  thing  is  unlawful. 


LEC.  XXII.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  61 

LECTURE    XXI. 
OF  REPORTS  OF  JUDICIAL  DECISIONS. 

1.  What  does  the  common  law  include  ? — 470 

Those  principles,  usages,  and  rules  of  action,  applicable  to  the  gov- 
ernment and  security  of  persons  and  property,  which  do  not  rest  for  their 
authority  upon  any  express  and  positive  declaration  of  the  will  of  the 
legislature. 

2.  What  are  the  sources  of  the  common  law  ? — 470 

A  great  proportion  of  the  rules  and  maxims  which  constitute  the  im- 
mense code  of  common  law,  grew  into  use  by  gradual  adoption,  and  re- 
ceived, from  time  to  time,  the  sanction  of  the  courts  of  justice,  without  any 
legislative  act  or  interference.  It  was  the  application  of  the  dictates  of 
natural  justice,  and  of  cultivated  reason,  to  particular  cases. 

3.  What  is  the  language  of  Sir  Matthew  Hale  respecting  the  common 
law  ?— 470 

That  it  is  not  the  product  of  the  wisdom  of  one  man,  or  society  of 
men,  in  any  one  age  ;  but  of  the  wisdom,  counsel,  experience,  and  obser- 
vation, of  many  ages  of  wise  men. 

4.  What  is  the  force  of  adjudged  cases  ? — 473 

The  reports  of  judicial  decisions  contain  the  most  certain  evidence, 
and  the  most  authoritative  and  precise  application  of  the  rules  of  the  com- 
mon law.  Adjudged  cases  become  precedents  for  future  cases  resting 
upon  analogous  facts,  and  brought  within  the  same  reason.  A  solemn 
decision  upon  any  point  of  law,  arising  in  any  given  case,  becomes  au- 
thority in  a  like  case. 


LECTURE   XXIII. 
OF  THE  CIVIL  LAW. 

1.  By  whose  order  was  the  great  body  of  the  Roman  or  civil  law  col- 
lected and  digested  ? — 515 

By  the  order  of  the  Emperor  Justinian,  in  the  early  part  of  the  sixth 
century. 


62  KENT'S  COMMENTARIES,  [VOL.  i. 

2.  Where  was  this  venerable  system  of  the  civil  law  created  ? — 515 

It  was  created  and  gradually  matured  on  the  banks  of  the  Tiber,  by 
the  successive  wisdom  of  Roman  statesmen,  magistrates,  and  sages. 

3.  Of  what  did  the  twelve  tables  consist  ? — 521 

Partly  of  entire  laws  transcribed  from  the  institutions  of  other  na- 
tions, and  partly  of  such  as  were  altered  and  accommodated  to  the  man- 
ners of  the  Romans,  partly  of  new  provisions,  and  partly  of  the  laws  and 
usages  of  their  ancient  kings. 


END    OF    VOLUME    FIRST. 


LEC.    XXIV.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  63 


VOLUME    II. 

OF  THE  LAW  CONCERNING  THE  RIGHTS 
OF  PERSONS. 


LECTURE    XXIV. 
OF  THE  ABSOLUTE  RIGHTS  OF  PERSONS. 

1.  How  are  the  rights  of  persons  in  private  life  divided  ? — 1 
Into  either  absolute  or  relative. 

2.  What  are  absolute  rights  ? — 1 

Such  as  belong  to  individuals  in  a  single  unconnected  state. 

3.  What  are  relative  rights  ? — 1 

Those  which  arise  from  the  civil  and  domestic  relations. 

4.  What  three  absolute  rights  are  named  by  the  commentator  ? — 1 

The  right  of  personal  security  ;  the  right  of  personal  liberty  ;  and 
the  right  to  acquire  and  enjoy  property.  These  rights  have  been  justly 
considered,  and  frequently  declared,  by  the  people  of  this  country,  to  be 
natural,  inherent,  and  unalienable. 

5.  On  what  does  the  effectual  enjoyment  of  them  depend  ?— 1 

Upon  civil  liberty  ;  and  that  consists  in  being  protected  and  governed 
by  laws  made,  or  assented  to,  by  the  representatives  of  the  people,  and 
conducive  to  the  general  welfare. 

The  history  of  our  colonial  governments  bears  constant  marks  of  the 
vigilance  of  a  free  and  intelligent  people,  who  understood  the  best  securi- 
ties for  political  happiness,  and  the  true  foundation  of  the  social  ties.  The 
inhabitants  of  the  colonies  of  Plymouth  and  Massachusetts,  in  the  infancy 
of  their  establishments,  declared  by  law  that  the  free  enjoyment  of  the 
liberties  which  humanity,  civility,  and  Christianity  called  for,  was  due  to 
every  man  in  his  place  and  proportion,  and  ever  had  been,  and  ever  would 
be,  the  tranquillity  and  stability  of  the  commonwealth.  They  insisted  that 
they  brought  with  them  into  this  country  the  privileges  of  English  free- 
men;  and  they  defined  and  declared  those  privileges,  with  a  caution,  sa- 
gacity, and  precision,  that  have  not  been  supassed  by  their  descendants. 


64  KENT'S  COMMENTARIES,  [VOL.  n. 

6.  What  was  their  fundamental  doctrine  ? — 2 

That  no  tax,  aid,  or  imposition  whatever,  could  rightfully  be  assessed 
or  levied  upon  them,  without  the  act  or  consent  of  their  own  legislature  ; 
and  that  justice  ought  to  be  equally,  freely,  impartially,  and  promptly  ad- 
ministered. The  right  of  trial  by  jury,  and  the  necessity  of  due  proof 
preceding  conviction,  were  claimed  to  be  undeniable  rights  ;  and  it  was 
further  expressly  ordained,  that  no  person  should  suffer  without  express 
law,  either  in  life,  limb,  liberty,  good  name,  or  estate  ;  nor  without  first 
being  brought  to  answer  by  due  course  and  process  of  law. 

7.  What   are  the  fifteen  provisions  named  by  the  commentator,  for 
guarding  the  right  of  personal  security? — 12 

1.  That  no  person  except  on  impeachment,  and  in  the  cases  arising 
in  the  military  and  naval  service,  shall  be  held  to  answer  for  a  crime  above 
petit  larceny,  unless  he  shall  have  been  previously  charged,  on  the  pre- 
sentation or  indictment  of  a  grand  jury. 

2.  No  person  shall  be  subject,  for  the  same  offence,  to  be  twice  put 
in  jeopardy  of  life  or  limb. 

3.  Nor  be  compelled  in  any  criminal  case,  to  be  a  witness  against 
himself. 

4.  In  all  criminal  prosecutions,  the  accused  is  entitled  to  a  speedy 
and  public  trial  by  an  impartial  jury. 

5.  And  upon  the  trial  he  is  entitled  to  be  confronted  with  the  witnes- 
ses against  him. 

6.  To  have  compulsory  process  for  witnesses  in  his  favour. 

7.  To  have  the  assistance  of  counsel  in  his  defence. 

8.  Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

9.  No  bill  of  attainder,  nor  ex  post  facto  law  can  be  passed. 

10.  No  person  can  be  deprived  of  life,  liberty,  or  property,  unless  by 
the  law  of  the  land,  or  the  judgment  of  his  peers. 

11.  Every  person  incase  of  impending  danger,  is   entitled  to  the 
protecting  arm  of  the  magistrate,  and  may  require  his  adversary  to  be 
bound  to  keep  the  peace. 

12.  If  violence  has  been  actually  offered,  the  offender  is  not  only  lia- 
ble to  a  public  prosecution  and  punishment,  but  is  bound  also  to  render  the 
party  injured  compensation  in  damages. 

13.  Every  man  may  exercise  the  natural  right  of  self  defence,  in 
those  cases  where  the  law  is  either  too  slow,  or  too  feeble,  to  stay  the 
hand  of  violence. 

14.  Homicide  is  justifiable  when  necessary  for  self  defence,  or  in  de- 
fence of  near  relations,  against  persons  attempting  to  commit  a  known 
felony,  with  force,  against  one's  person,  habitation,  or  property. 

15.  Every  one  is  entitled  to  the  enjoyment  of  his  reputation. 

8.  Into  what  two  kinds  does  the  law  distinguish  injuries  affecting  the 
reputation  of  individuals  ? — 1 6 

Into  slander  spoken  and  slander  by  writing,  signs,  or  pictures.     The 


LEC.  XXIV.]  REDUCED    TO    QUESTIONS  AND    ANSWERS.  65 

Roman  law  took  this  distinction  between  slander  spoken  and  written,  and 
the  same  distinction  prevails  in  our  law,  which  considers  the  slander  of  a 
private  person  by  words,  in  no  other  light  than  a  civil  injury,  for  which  a 
pecuniary  compensation  may  be  obtained. 

9.  In  what  does  this  injury  consist  ? — 16 

In  falsely  and  maliciously  charging  another  with  the  commission  of 
some  public  offence,  or  the  breach  of  some  public  trust,  or  with  any  matter 
in  relation  to  his  particular  trade  or  vocation,  and  which,  if  true,  would 
render  him  unworthy  of  employment ;  or,  lastly,  with  any  other  matter  or 
thing,  by  which  special  injury  is  sustained. 

10.  What  is  a  libel?— 17 

It  is  a  malicious  publication,  expressed  either  in  printing  or  writing, 
or  by  signs  or  pictures,  tending  either  to  blacken  the  memory  of  one  dead, 
or  the  reputation  of  one  living,  and  expose  him  to  public  hatred,  contempt, 
or  ridicule.  A  malicious  intent  towards  government,  magistrates,  or  indi- 
viduals, and  an  injurious  or  offensive  'tendency,  must  concur  to  constitute 
the  libel.  i 

11.  In  what  light  does  the  law  consider  this  grievance  ? — 17 

As  a  public  as  well  as  a  private  injury ;  and  has  rendered  the  party 
not  only  liable  to  a  private  suit  at  the  instance  of  the  party  libelled,  but 
answerable  to  the  state  by  indictment,  as  guilty  of  an  offence  tending  di- 
rectly to  a  breach  of  the  public  peace.  But  though  the  law  be  solicitous 
to  protect  every  man  in  his  fair  fame  and  character,  it  is  equally  careful 
that  the  liberty  of  speech,  and  of  the  press,  should  be  duly  preserved. 
The  liberal  communication  of  sentiment,  and  entire  freedom  of  discussion, 
in  respect  td  the  character  and  conduct  of  public  men,  and  of  candidates 
for  public  favour,  is  deemed  essential  to  the  judicious  exercise  of  the  right 
of  suffrage,  and  of  that  control  over  their  rulers,  which  resides  in  the  free 
people  of  the  United  States.  It  has,  accordingly  become,  a  constitutional 
principle  in  this  country,  that  "  every  citizen  may  freely  speak,  write,  and 
publish  his  sentiments,  on  all  subjects,  being  responsible  for  the  abuse  of 
that  right,  and  that  no  law  can  rightfully  be  passed  to  restrain  or  abridge 
the  freedom  of  speech,  or  of  the  press."  The  law  of  England,  even  under 
the  Anglo-Saxon  line  of  princes,  took  severe  and  exemplary  notice  of 
defamation,  as  an  offence  against  the  public  peace  ;  and  in  the  time  of 
Henry  III.,  Bracton  adopted  the  language  of  the  Institutes  of  Justinian, 
and  held  slander  and  libellous  writings  to  be  actionable  injuries. 

12.  Where  is  the  first  private  suit,  for  slanderous  words  to  be  met  with 
in  the  English  law? — 18 

In  the  reign  of  Edward  III.,  and  for  the  high  offence  of  charging 
another  with  a  crime  which  endangered  his  life. — Reeve's  Hist,  of  English 
law,  vol.  3,  p.  90. 
9 


66  KENT'S  COMMENTARIES,  [VOL.  n. 

13.  What  is  the  general  rule  of  evidence  in  prosecutions  for  injuries  to 
private  reputation  ? — 18 

That  in  a  private  action  of  slander  for  damages,  even  in  the  action  of 
scandalum  magnatum,  the  defendant  may  justify,  by  showing  the  truth  of 
the  fact  charged.  But  in  the  case  of  a  public  prosecution  for  a  libel,  it 
.became  the  established  principle  of  the  English  law,  as  declared  in  the 
court  of  star  chamber,  about  the  beginning  of  the  reign  of  James  I.,  that 
the  truth  of  the  libel  could  not  be  shown  by  way  of  justification.  The 
English  common  law  doctrine  of  libel,  is  the  common  law  doctrine  of  this 
country,  in  all  cases  in  which  it  has  not  been  expressly  controlled  by 
constitutional  or  legislative  provisions. 

14.  How  far  is  the  common  law  of  England,  considered  to  be  the  law 
of  the  United  States  ?— 28 

In  all  cases  in  which  it  has  not  been  altered  or  rejected  by  statute, 
or  varied  by  local  usages,  under  the  sanction  of  judicial  decisions. 

15.  What  are  the  principal  statute  provisions  in  New  York,  on  the  writ 
of  habeas  corpus  ? — 29 

That,  all  persons  restrained  of  their  liberty,  under  any  pretence  what- 
soever, are  entitled  to  prosecute  this  writ,  unless  they  be  persons  detained  : 
1.  By  process  from  any  court  or  judge  of  the  United  States,  having  ex- 
clusive jurisdiction  in  the  case.  2.  Or  by  final  judgment  or  decree,  or 
execution  thereon,  of  any  competent  tribunal  of  civil  or  criminal  jurisdic- 
tion, other  than  in  a  case  of  commitment  for  any  alleged  contempt.  The 
application  for  the  writ  must  be  to  the  supreme  court,  or  chancellor,  or 
a  judge  of  the  court,  or  other  officer,  having  the  powers  of  a  judge,  at 
chambers  ;  and  it  must  be  by  petition  in  writing,  signed  by,  or  on  behalf 
of  the  party  ;  and  it  must  state  the  grounds  of  the  application,  and  the 
facts  must  be  sworn  to.  The  penalty  of  $1000,  is  given  in  favour  of  the 
party  aggrieved,  against  every  officer,  and  against  every  member  of  the 
court  assenting  to  the  refusal,  if  any  court  or  officer  authorized  to  grant 
the  writ,  shall  refuse  it  when  legally  applied  for.  If  the  person  to  whom 
the  writ  is  directed,  or  on  whom  it  is  served,  shall  not  promply  obey  the 
writ,  by  making  a  full  and  explicit  return,  and  shall  fail  to  produce  the 
party,  without  a  sufficient  cause,  he  is  liable  to  be  forthwith  attached x and 
committed,  by  the  person  granting  the  writ,  to  close  custody,  until  he  shall 
have  obeyed  the  writ.  A  person  discharged  upon  habeas  corpus  is  not  to 
be  re-imprisoned  for  the  same  cause,  and  if  any  person  solely,  or  as  a 
member  of  any  court,  or  in  execution  of  any  order,  knowingly  re-imprison 
such  party,  he  forfeits  a  penalty  of  $1250  to  the  party  aggrieved. 

16.  What  has  the  constitution  of  the  United  States  ordained  upon  the 
subject  of  religion  ? — 35 

That  congress  shall  make  no  law  respecting  an  establishment  of  re- 
ligion, or  prohibiting  the  free  exercise  thereof,  and  the  same  principle 
appears  in  all  the  state  constitutions. 


LEG.  XXV.]       REDUCED  TO  QUESTIONS  AND  ANSWERS.  67 

LECTURE    XXV. 
OF  ALIENS  AND  NATIVES. 

1.  Who  are  natives  ? — 39 

All  persons  born  within  the  jurisdiction  of  the  United  States.  If 
they  were  resident  citizens  at  the  time  of  the  declaration  of  independence, 
though  born  elsewhere,  and  deliberately  acceded  to  it  an  express  or  im- 
plied sanction,  they  became  parties  to  it,  and  are  to  be  considered  as  na- 
tives ;  their  social  tie  being  coeval  with  the  existence  of  the  nation. 

2.  What  is  the  doctrine  of  the  English  law  as  to  the  allegiance  of  nat- 
ural born  subjects  ? — 42 

That  they  owe  an  allegiance  which  is  intrinsic  and  perpetual,  and 
which  cannot  be  devested  by  any  act  of  their  own.  In  the  case  of  Mac- 
donald,  who  was  tried  bdjpre  Ch.  J.  Lee,  and  who,  though  born  in  England, 
had  been  educated  in  France,  and  spent  his  riper  years  there  ;  his  coun- 
sel spoke  against  the  doctrine  of  natural  allegiance  as  slavish,  and  repug- 
nant to  the  principles  of  their  revolution.  The  court,  however,  said,  that 
it  had  never  been  doubted,  that  a  subject  born,  taking  a  commission  from  a 
foreign  prince,  and  committing  high  treason,  was  liable  to  be  punished  as 
a  subject  for  that  treason.  They  held,  that  it  was  not  in  the  power  of  any 
private  subject  to  shake  off  his  allegiance  and  transfer  it  to  a  foreign 
prince  ;  nor  was  it  in  the  power  of  any  foreign  prince  by  naturalizing  or 
employing  a  subject  of  Great  Britain,  to  dissolve  the  bond  of  allegiance 
between  the  subject  and  the  crown. 

3.  What  is  the  rule  on  this  subject,  in  the  United  States  ?— 44 

It  is  not  settled,  but  the  better  opinion  and  more  authorative  doctrine 
is,  that  the  English  common  law  prevails,  subject  to  the  power  of  congress 
to  regulate  by  law,  but  no  such  power  has  yet  been  exercised. 

4.  What  is  the  law  of  France  on  this  point?— 50 

The  French  law  will  not  allow  a  natural  born  subject  of  France,  to 
bear  arms,  in  time  of  war,  in  the  service  of  a  foreign  power,  against 
France ;  and  yet,  subject  to  that  limitation,  every  Frenchmen  is  free  to 
abdicate  his  country. 

5.  Who  is  an  alien  ?— 50 

An  alien  is  a  person  born  out  of  the  jurisdiction  of  the  United  States. 
There  are,  however,  some  exceptions  to  this  rule,  as  the  children  of  am- 
bassadors, (and  other  citizens  temporarily  absent,)  born  abroad. 


68  KENT'S  COMMENTARIES,  [VOL.  n. 

6-  What  is  the  rule  of  the  common  law  as  to  an  alien's  right  to  hold 
real  estate?— 53 

That  an  alien  cannot  acquire  title  by  descent,  or  created  by  other 
mere  operation  of  law. 

7.  What  is  the^general  rule,  if  an  alien  purchase  land,  or  if  land  be 
devised  to  him  ? —  54 

That  he  may  take  and  hold,  until  an  inquest  of  office  has  been  had  ; 
but  upon  his  death,  the  land  would  instantly,  and  of  necessity,  (as  the 
freehold  cannot  be  kept  in  abeyance,)  without  any  inquest  of  office, 
escheat  and  rest  in  the  state,  because  he  is  incompetent  to  transmit  by 
hereditary  descent. 

8.  May  natural  born  subjects  inherit,  through  an  alien,  the  estates  of 
their  ancestors  1 — 56 

They  may. 

9.  What  property  may  aliens  acquire?— 62 

They  may  take  a  lease  for  years,  of  a  house  for  the  benefit  of  trade  ; 
and  they  are  capable  of  acquiring,  holding,  and  transmitting  personal 
property  in  like  manner  as  our  citizens,  and  they  can  bring  suits  for  the 
recovery  and  protection  of  that  property.  They  may  take  a  mortgage 
upon  real  estate,  by  way  of  security  for  a  debt,  and  are  entitled  to  come 
into  a  court  of  equity,  and  have  the  mortgage  foreclosed. 

10.  In  what  manner,  under  the  act  of  May,  1828,  may  an  alien  become 
a  citizen  of  the  United  States  ? — 64 

It  is  required,  that  he  declare,  on  oath,  before  a  state  court,  being  a 
court  of  record,  with  a  seal  and  clerk,  and  having  common  law  jurisdic- 
tion, or  before  a  circuit  or  district  court  of  the  United  States,  or  before  a 
clerk  of  either  of  said  courts,  two  years,  at  least,  before  his  admission,  his 
intention  to  become  a  citizen,  and  to  renounce  his  allegiance  to  his  own 
sovereign.  At  the  time  of  his  admission,  his  country  must  be  at  peace 
with  the  United  States,  and  he  must,  before  one  of  these  courts,  take  an 
oath  to  support  the  constitution  of  the  United  States,  and  likewise,  on  oath, 
to  renounce  and  abjure  his  native  allegiance.  He  must,  at  the  time  of  his 
admission,  satisfy  the  court,  by  other  evidence  than  his  own  oath,  that  he 
has  resided  five  years  at  least,  within  the  United  States,  and  one  year,  at 
least,  within  the  state  where  the  court  is  held  ;  and  if  he  have  arrived 
after  the  peace  of  1815,  his  residence  must  have  been  continued  for  five 
years  next  preceding  his  admission,  without  being  at  any  time,  during  the 
five  years,  out  of  the  territory  of  the  United  States.  He  must  satisfy  the 
court,  that  during  that  time  he  has  behaved  as  a  man  of  good  moral  char- 
acter, attached  to  the  principles  of  the  constitution  of  the  United  States, 
and  well  disposed  to  the  good  order  and  happiness  of  the  same.  He  must, 
at  the  same  time,  renounce  any  title,  or  order  of  nobility,  if  any  he  hath. 


LEC.  XXVI.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  69 

11.  To  whom  does  the  act  of  congress  confine  the  description  of  aliens 
capable  of  naturalization  ? — 72 

To  "  free  white  persons,"  I  presume^  (says  the  commentator  ;)  this 
excludes  the  inhabitants  of  Africa,  and  their  descendants,  and  it  may  be- 
come a  question  to  what  extent  persons  of  mixed  blood  are  to  be  excluded, 
and  what  shades  and  degrees  of  mixture  of  colour  disqualify  an  alien  from 
application  for  the  benefits  of  the  act  of  naturalization.  Perhaps  there 
might  be  difficulties  also  as  to  the  copper-coloured  natives  of  America,  or 
the  yellow  or  tawny  races  of  Asiastics,  and  it  may  well  be  doubted  whether 
any  of  them  are  "  white  persons,"  within  the  purview  of  the  law.  It  is 
the  declared  law  of  New  York  and  South  Carolina,  that  Indians  are  not 
citizens,  but  distinct  tribes,  living  under  the  protection  of  government,  and, 
consequently,  never  can  be  made  citizens  under  the  act  of  congress. 


9 

LECTURE     XXVI. 

OF  THE  LAW  CONCERNING  MARRIAGE. 

1.  What  is  the  primary  and  most  important  of  the  domestic  relations  1 
—74 

That  of  husband  and  wife. 

2.  In  what  has  it  its  foundation  ? — 74 

In  nature,  and  is  the  only  lawful  relation  by  which  Providence  has 
permitted  the  continuance  of  the  human  race. 

3.  What  is  its  moral  influence  ?— - 74 

In  every  age  it  has  had  a  propitious  influence  on  the  moral  improve- 
ment and  happiness  of  mankind.  It  is  one  of  the  chief  foundations  of 
social  order.  We  may  justly  place  to  the  credit  of  the  institution  of  mar- 
riage, a  great  share  of  the  blessings  which  flow  from  refinement  of  man- 
ners, the  education  of  children,  the  sense  of  justice,  and  the  cultivation 
of  the  liberal  arts. 

4.  Who  are  incapable  of  contracting  marriage  ? — 74 

All  persons  who  have  not  the  regular  use  of  their  understanding,  suffi- 
cient to  deal  with  discretion  in  the  common  affairs  of  life,  as  idiots,  and 
lunatics,  (except  in  their  lucid  intervals,)  are  incapable  of  agreeing  to  any 
contract,  and  of  course  to  that  of  marriage. 


70  KENT'S  COMMENTARIES,  [VOL.  n. 

5.  What  does  the  law  consider  as  the  basis  of  the  marriage  contract  ? 
—76 

The  consent  of  the  parties,  and  the  ingredient  of  fraud  or  duress,  is 
fatal  in  this  as  in  any  other  contract,  for  the  free  assent  of  the  mind  is 
wanting.  The  common  law  allowed  divorces  a  vinculo,  causa  metus,  causa 
impotentia,  and  those  were  cases  of  a  fradulent  contract.  It  is  said  that 
error  will,  in  some  cases,  destroy  a  marriage,  and  render  the  contract  void, 
as  if  one  person  be  substituted  for  another.  This,  however,  would  be  a  case 
of  palpable  fraud,  going  to  the  ground  of  the  contract ;  and  it  would  be 
difficult  to  state  a  case,  in  which  error  simply,  and  without  any  other  in- 
gredient, as  to  the  parties,  or  one  of  them,  in  respect  to  the  other,  would 
vacate  the  contract.  It  is  well  understood  that  error,  and  even  disinge- 
nuous representations,  in  respect  to  the  qualities  of  one  of  the  contracting 
parties,  as  his  condition,  rank,  fortune,  manners,  and  character,  would  be 
insufficient.  The  law  makes  no  provision  for  the  relief  of  a  blind  creduility 
however  it  may  have  been  produced. 

6.  Whatsis  the  age  of  consent  fixed  by  the  common  law  ? — 78 

Fourteen  years  in  males,  and  twelve  in  females.  This  rule  was  de- 
rived from  the  civil  law  which  established  the  same  periods  of  twelve  and 
fourteen,  as  the  competent  age  to  render  the  contract  binding,  the  same 
rule  prevailed  in  France,  before  their  revolution  ;  but  by  the  code  of  Na- 
poleon, the  age  of  consent  was  raised  to  eighteen  in  males,  and  fifteen  in 
females,  though  a  dispensation  from  the  rule  may  be  granted  for  good 
cause. 

7.  How  does  the  law  regard  a  second  marriage,  while  a  former  husband 
or  wife  is  living  1- — 79 

As  absolutely  null  and  void  ;  and.it  is  probably  an  indictable  offence 
in  most,  if  not  all  of  the  states  of  the  union.  In  New  York,  it  is  declared 
by  statute,  to  be  an  offence  punishable  by  imprisonment  in  the  state  prison, 
in  all  but  certain  excepted  cases. 

8.  What  are  those  cases  ? — 79 

When  the  husband  or  wife,  as  the  case  may  be,  of  the  party  who  re- 
marries, remains  continually  without  the  United  States  for  five  years  to- 
gether ;  or  when  one  of  the  married  parties  shall  have  absented  from  the 
other  by  the  space  of  five  successive  years,  and  the  one  remarrying  not 
knowing  the  other,  who  had  absented,  to  be  living  within  that  time  ;  or 
when  the  person  re-marrying  was,  at  the  time  of  such  marriage,  divorced 
by  sentence  of  a  competent  court,  or  if  the  former  husband  or  wife  of  the 
person  re-marrying  had  been  sentenced  to  imprisonment  for  life  ;  or  if  the 
former  marriage  has  been  duly  declared  void,  or  made  within  the  age  of 
consent. 

9.  How  does  the  law  regard  the  intermarriage  of  relations  ? — 82 


LEG.  XXVI.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  71 

In  most  countries  of  Europe  in  which  the  canon  law  has  had  authority 
or  influence,  marriages  are  prohibited  between  near  relations  by  blood  or 
marriage.  Prohibitions  similar  to  the  canonical  disabilities  in  the  English 
ecclesiastical  law,  were  contained  in  the  Jewish  laws  ;  and  they  existed 
also  in  the  laws  and  usages  of  the  Greeks  and  Romans,  subject  to  consid- 
erable alternations  of  opinion,  and  various  modifications  and  extent.  It  is 
very  difficult  to  ascertain  exactly  the  point  at  which  the  laws  of  nature 
have  ceased  to  discountenance  the  union.  It  is  very  clearly  established 
that  marriages  between  relations  by  blood  in  the  lineal,  ascending  or  de- 
scending lines,  are  unnatural  and  unlawful,  and  they  lead  to  a  confusion 
of  rights  and  duties.  On  this  point,  the  civil,  canon,  and  the  common  laws 
are  in  perfect  harmony.  In  several  of  the  United  States,  marriages  within 
the  levitical  degrees,  under  some  exceptions,  are  made  void.  In  New 
York,  marriages  between  relatives  of  the  ascending  and  descending  lines 
and  between  brothers  and  sisters,  of  the  half  as  well  as  of  the  whole  blood 
are  declared  incestuous  and  void.  So  in  Massachusetts.  In  Ohio  marri- 
ages between  nearer  of  kin  than  first  dousins  are  void.  So  in  Louisiana  ; 
and  this  according  to  the  civil  law. 

10.  What  is  the  rule  respecting  the  consent  of  parents  and  guardians? 

—84 

That  it  is  not  requisite  to  the  validy  of  a  marriage. 

11.  What  are  the  ceremonies  required? — 86 

No  peculiar  ceremonies  are  requisite  by  the  common  law,  to  the  valid 
celebration  of  marriage.  The  consent  of  the  parties  is  all  that  is  required  ; 
and  marriage  is  said  to  be  a  contract  jure  gentium,  that  consent  is  all  that 
is  required  by  natural  or  public  law.  If  the  contract  be  made  per  verba 
de  prasenti,  and  remains  without  cohabitation,  or  if  made  per  verba  de 
futuro,  and  is  followed  by  consummation,  it  amounts  to  a  valid  marriage,  and 
which  the  parties  cannot  dissolve,  and  it  is  equally  binding  as  if  made  in 
facie  ecclesicB. 

12.  In  what  light  does  the  law  consider  marriage  ? — 87 
In  no  other  light  than  as  a  civil  contract. 

13.  How  must  the  consent  of  the  parties  be  declared  ? — 87 

It  may  be  declared  before  a  magistrate,  or  simply  before  witnesses, 
or  subsequently  confessed  or  acknowledged,  or  the  marriage  may  even  be 
inferred  from  continual  cohabitation,  and  reputation  as  husband  and  wife, 
except  in  cases  of  civil  actions  for  adultery,  or  public  prosecutions  for 
bigamy.  This  facility  in  forming  the  marriage  contract  by  the  common 
and  ecclesiastical  law,  exists  in  the  American  states  where  the  common 
law  has  not  been  altered  on  this  point.  In  the  Roman  catholic  church, 
by  the  authority  of  the  council  of  Trent,  marriage  was  elevated  into  the 
dignity  of  a  sacrament,  and  was  clothed  with  formalities,  and  made  a  com- 
plicated system.  But  in  France,  under  the  revolutionary  constitution  of 


72  KENT'S  COMMENTARIES,  [VOL.  n. 

1791,  marriage  was  declared  to  be  regarded  as  a  mere  civil  contract.  The 
same  principle  was  adopted  in  the  code  Napoleon  ;  and  now,  says  Toullier, 
the  law  separates  the  civil  contract  entirely  from  the  sacrament  of  mar- 
riage, and  does  not  attend  to  the  forms  of  the  church  and  the  nuptial  ben- 
ediction, which  bind  only  the  conscience  of  the  faithful.  Marriage  valid 
by  the  law  of  the  place  where  it  is  celebrated  is  valid  every  where.  The 
principle  is  that,  with  respect  to  marriage,  the  lex  loci  contractus  prevails 
over  the  lex  domicilii,  as  being  the  safer  rule,  and  one  dictated  by  just  and 
enlightened  views  of  international  jurisprudence. 

14.  What  are  the  incidents  of  marriage  respecting  property,  according 
to  the  jus  guentium  1 — 94 

They  are  drawn  by  Mr.  Justice  Story,  as  follows  :  1.  That  where 
there  is  a  marriage  in  a  foreign  country,  and  an  express  nuptial  contract 
concerning  personal  property,  it  will  be  sustained  every  where,  unless  it 
contravenes  some  positive  rule  of  law  or  policy.  But  as  to  real  property, 
it  will  be  made  subservient  to  the  lex  rei  sitae.  2.  Where  such  a  contract 
applies  to  personal  property,  and  there  is  a  change  afterwards  of  the  ma- 
trimonial domicil,  the  law  of  the  actual  domicil  will  govern  as  to  future 
acquisitions.  3.  If  there  be  no  such  contract,  the  matrimonial  domicil 
governs  all  the  personal  property  everywhere,  but  not  the  real.  4.  The 
matrimonial  domicil  governs  as  to  all  acquisitions  present  and  future,  if 
there  be  no  change  of  domicil.  If  there  be,  then  the  law  of  the  actual 
domicil  will  govern  as  to  future  acquisitions,  and  the  law  rei  sites  as  to 
real  property.  If  the  marriage  takes  place  in  a  foreign  country  in  transitu, 
and  where  the  parties  had  no  intention  of  fixing  their  domicil,  the  law  of 
the  actual  or  intended  domicil  of  the  parties  governs  the  incidents  of  the 
marriage  ;  and  it  is  a  general  rule  that  if  the  husband  and  wife  had  differ- 
ent domicils  when  they  married,  the  domicil  of  the  husband  became  the 
true  and  matrimonial  domicil. 


LECTURE    XXVII. 
OF  THE  LAW  CONCERNING  DIVORCE. 

1.  What  are  the  provisions  made  by  the  revised  statutes  of  New  York, 
on  the  subject  of  divorce  ? — 96 

They  have  authorized  the  chancellor,  on  suit  before  him,  by  bill,  to 
declare  void  the  marriage  contract :  1.  If  either  of  the  parties,  at  the  time 
of  the  marriage,  had  not  obtained  the  age  of  legal  consent.  2.  If  the 
former  husband, or  wife  'was  living  and  the  marriage  in  force.  3.  If  one 


LEG.  XXVII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  73 

of  the  parties  was  an  idiot  or  lunatic.  4.  If  the  consent  of  one  of  the 
parties  was  obtained  by  force  or  fraud.  5.  If  one  of  the  parties  was  phys- 
ically incapable  of  entering  into  the  marriage  state.  All  issues  upon  the 
legality  of  a  marriage,  except  where  it  is  sought  to  be  annulled  on  the 
ground  of  physical  incapacity  of  one  of  the  parties,  are  to  be  tried  by  a 
jury  upon  a  feigned  issue. 

2.  Within  what  time  must  the  suit  be  brought  for  the  last  cause  to  annul 
a  marriage  ? — 97 

Within  two  years,  and  by  the  party  injured. 

3.  As  the  law  now  stands  in  New  York,  in  what  three  cases  only,  can 
a  bill  of  divorce  for  adultery  be  obtained  ? — 98 

1.  If  the  married  parties  are  inhabitants  of  the  state,  at  the  time  of 
the  commission  of  the  adultery.  2.  If  the  marriage  took  place  in  the 
state,  and  the  party  injured  be  an  actual  resident  at  the  time  of  the  adul- 
tery committed,  and  at  the  time  of  filing  the  bill.  3.  If  the  adultery 
was  committed  in  the  state,  and  the  injured  party,  at  the  time  of  filing  the 
bill,  be  an  actual  inhabitant  of  the  state. 

4.  What  is  the  punishment  of  a  defendant,  if  guilty  ? — 98 
Disability  from  re-marrying  during  the  life  of  the  other  party. 

5.  How  does  it  affect  children  ? — 99 

If  the  wife  be  the  complainant,  the  legitimacy  of  any  children  of  the 
marriage,  born  or  begotten  of  her  before  the  filing  of  the  bill,  are  not  to 
be  affected  by  the  decree ;  and  if  the  husband  be  the  complainant,  the 
legitimacy  of  the  children,  born  or  begotten  before  the  commission  of  the 
offence  charged,  are  not  to  be  affected  by  the  decree.  The  statute  further 
provides,  that  if  the  wife  be  the  complainant,  the  court  is  to  make  a  suita- 
ble allowance,  in  sound  discretion,  out  of  the  defendant's  property,  for  the 
maintenance  of  her  and  her  children,  and  compel  the  defendant  to  abide 
the  decree.  The  chancellor  is  also  to  give  to  the  wife,  being  the  injured 
party,  the  absolute  enjoyment  of  any  real  estate  belonging  to  her,  or  of 
any  personal  property  derived  by  title  through  her,  or  acquired  by  her 
industry.  If,  on  the  other  hand,  the  husband  be  the  complainant,  then  he 
is  entitled  to  retain  the  same  interest  in  the  wife's  estate,  which  he  would 
have  if  the  marriage  had  continued  ;  and  he  is  also  entitled  to  her  per- 
sonal estate  and  choses  in  action  which  she  possessed  at  the  time  of  the 
divorce,  equally  as  if  the  marriage  had  continued  ;  and  the  wife  loses  her 
title  to  dower,  and  to  a  distributive  share  of  her  husband's  personal 
estate. 

6.  In  what  cases  may  the  court  refuse  to  decree  a  divorce,  though  the 
fact  of  adultery  be  established  ?  — 101 

In  the  four  following  :     1.  If  the  offence  was  committed  by  the  pro- 
10 


74  KENT'S  COMMENTARIES,  [VOL.  n. 

curement  or  with  the  connivance  of  the  complainant.  2.  If  it  has  been 
forgiven,  and  the  forgiveness  proved  by  express  proof,  or  by  the  voluntary 
cohabitation  of  the  parties  with  knowledge  of  the  fact.  3.  Where  the 
suit  has  not  been  brought  within  five  years  after  the  adultery.  4.  Or 
where  the  complainant  has  been  guilty  of  the  same  offence.  The  policy 
of  New  York  has  been  against  divorces  from  the  marriage  contracts, 
except  for  adultery.  The  statute  authorizes  the  court  of  chancery 
to  allow  of  qualified  divorces  a  mensa  et  thoro,  founded  on  the  complaint 
of  the  wife,  of  cruel  or  inhuman  treatment,  or  such  conduct  as  renders  it 
unsafe  or  improper  for  her  to  cohabit  with  her  husband  ;  or  for  wilful  de- 
sertion of  her,  and  refusal  or  neglect  to  provide  for  her.  The  court  may 
decree  a  separation  from  bed  and  board  for  ever,  or  for  a  limited  period,  in 
its  discretion,  and  the  decree  may  be  revoked  at  anyT  time,  by  the  same 
court,  by  which  it  was  pronounced,  under  such  regulations  and  restrictions 
as  the  court  may  impose,  upon  a  joint  application  of  the  parties,  and  upon 
their  producing  satisfactory  evidence  of  their  reconciliation.  To  entitle 
the  court  to  sustain  a  suit,  the  parties  must  be  inhabitants  of  the  state,  and 
the  wife  an  actual  resident  at  the  time  of  exhibiting  the  complaint ;  or  the 
parties  must  have  been  inhabitants  of  the  state,  at  least  one  year,  and  the 
wife  an  actual  resident  at  the  time  of  filing  the  bill. 

7.  What  is  the  effect  of  a  foreign  divorce,  or  how  far  is  a  divorce  in 
one  state  valid  in  another  ? — 107 

The  question  has  never  been  judicially  raised  and  determined  in 
the  United  States,  and  it  has  generally  been  considered  that  the  state  gov- 
ernments have  complete  control  and  discretion  in  the  case.  In  Harding  v. 
Allen,  (9  Greenleafs  Rep.,  140,)  it  was  adjudged  by  the  supreme  judicial 
court  in  Maine,  that  a  decree  of  divorce  pronounced  according  to  the  law 
of  one  jurisdiction,  and  the  new  relations  thereupon  formed,  ought  to  be 
recognized  in  the  absence  of  all  fraud,  as  operative  and  binding  every 
where,  so  far  as  related  to  the  dissolution  of  marriage,  though  not  as  to 
other  parts  of  the  decree,  such  as  an  order  for  the  payment  of  money  by 
the  husband.  This  is  deemed  a  correct  and  valuable  decision  in  this 
country',  though  contrary  to  the  English  rule — which  is,  that  a  foreign 
divorce  a  vinculo,  from  an  English  marriage,  between  parties  domiciled  in 
England  at  the  time  of  such  marriage  is  null. 

8.  What  is  the  effect  of  a  foreign  judgment  ? — 118 

In  cases  not  governed  by  the  constitution  and  laws  of  the  United 
States,  the  doctrine  of  the  English  law  on  that  subject,  is  generally  the 
law  of  this  country  ;  and  there  a  distinction  is  taken  between  a  suit 
brought  to  enforce  a  foreign  judgment,  and  a  plea  of  a  foreign  judgment  in 
bar  of  a  fresh  suit  for  the  same  cause.  No  sovereign  is  obliged  to  exe- 
cute, within  his  dominion,  a  sentence  rendered  out  of  it ;  and  if  execution 
be  sought  by  suit  upon  the  judgment,  or  otherwise,  he  is  at  liberty,  in  his 
courts  of  justice,  to  examine  into  the  merits  of  such  judgment;  for  the 
effect  to  be  given  to  foreign  judgments  is  altogether  a  matter  of  comity,  in 
cases  where  it  is  not  regulated  by  treaty.  In  the  former  case  of  a  suit 


LEC.    XXVIII.]         REDUCED    TO    QUESTION'S    AND    ANSWERS.  75 

to  enforce  a  foreign  judgment,  the  rule  is,  that  the  foreign  judgment  is  to 
be  received,  in  the  first  instance,  as  prima  facie  evidence  of  the  debt,  and 
it  lies  on  the  defendant  to  impeach  the  justice  of  it,  or  show  that  it  was 
irregularly  and  unduly  obtained.  But  if  the  foreign  judgment  has  been 
pronounced  by  a  court  possessed  of  competent  jurisdiction  over  the  cause 
and  the  parties,  and  carried  into  effect,  and  the  losing  party  institutes  a 
new  suit  upon  the  same  matter,  the  plea  of  the  former  judgment  is  an 
absolute  bar.  It  is  a  res  judicata,  which  is  received  as  evidence  of  truth  ; 
and  the  exceptio  rei  judicata,  as  the  plea  is  termed  in  the  civil  law,  is  final. 
This  is  a  principle  of  general  jurisprudence. 

9.  What  is  the  effect  of  a  suit  pending  before  another  competent  tribu- 
nal 1—122 

A.  Us  pendens,  before  the  tribunals  of  another  jurisdiction  has,  in  pro- 
ceedings in  rem,  been  held  to  be  a  good  plea  in  abatement  of  a  suit.  The 
pendency  of  the  foreign  attachment  is  a  good  plea  in  abatement  of  the 
suit.  But,  generally,  a  personal  arrest  and  holding  to  bail  in  a  foreign 
country,  cannot  be  pleaded  in  abatement  ;  and  it  is  no  obstacle  to  a  new- 
arrest  and  holding  to  bail  for  the  same  cause  in  the  English  courts,  and 
they  will  not  take  judicial  notice  of  any  arrest  in  a  foreign  country,  or  in. 
their  own  plantations  ;  and  the  same  rule  of  law  has  been  declared  in  this 
country. 


LECTURE    XXVIII. 
OF  HUSBAND  AND  WIFE. 

1.  Can  any  contracts  at  law  be  made  between  husband  and  wife  ? — 129 

Not  without  the  intervention  of  trustees  :  for  she  is  considered  as 
being  sub  potestate  viri,  and  incapable  of  contracting  with  him  ;  and  ex- 
cept in  special  cases,  within  the  cognizance  of  equity,  the  contracts  which 
subsisted  between  them  prior  to  the  marriage,  are  dissolved.  The  wife 
cannot  convey  lands  to  her  husband,  though  she  may  release  her  right  of 
dower  to  his  grantee  ;  nor  can  the  husband  convey  lands  by  deed  directly 
to  the  wife.  But  the  husband  may  devise  lands  to  his  wife,  for  the  in- 
strument is  not  to  take  effect  until  after  his  death  ;  and  by  a  conveyance  to 
uses,  he  may  create  a  trust  in  favour  of  his  wife,  and  equity  will  decree  a 
performance  of  the  contract  by  the  husband  with  his  wife,  for  her  benefit. 

2.  What  is  the  general  rule  as  to  the  rights  and  liabilities  of  the  hus- 
band?—129 


76  KENT'S  COMMENTARIES,  [VOL.  n. 

That  he  becomes,  upon  the  marriage,  entitled  to  all  the  goods  and 
chattels  of  the  wife,  and  to  the  rents  and  profits  of  her  lands,  and  he  be- 
comes liable  to  pay  her  debts,  and  perform  her  contracts. 

3.  What  right  in  the  lands  of  his  wife,  does  the  husband  acquire  by 
marriage  ? — 130 

If  the  wife,  at  the  time  of  marriage,  be  seised  of  an  estate  of  inheri- 
tance in  land,  her  husband,  upon  the  marriage,  becomes  seised  of  the  free- 
hold jure  uxoris. 

4.  What  right  does  the  husband  acquire  in  the  life  estate  of  his  wife  1 
—134 

Upon  the  marriage,  he  becomes  seised  of  such  an  estate  in  right  of 
his  wife,  and  is  entitled  to  the  profits  during  the  marriage. 

5.  What  if  she  have  an  estate  during  the  life  of  another  person  who 
survives  her? — 134 

The  husband  becomes  a  special  occupant  of  the  land,  during  the  life 
of  such  other  person. 

6.  To  whom  does  the  land  go  after  the  estate  for  life  is  ended  ?  — 134 

To  the  person  entitled  in  reversion  or  remainder,  and  the  husband, 
quasi  husband,  has  no  more  concern  with  it.  This  estate  the  husband  can 
only  sell  or  charge  to  the  extent  of  his  interest  in  it,  and  his  representa- 
tives take  as  emblements  the  crops  growing  at  his  death. 

7.  What  rights  has  the  husband  in  the  chattels  real  of  his  wife  ?— 134 

Upon  marriage,  he  becomes  possessed  of  all  the  chattels  real  of  his 
wife,  as  leases  for  years,  and  the  law  gives  him  power  without  her,  to 
assign,  mortgage,  or  otherwise  dispose  of  the  same  as  he  pleases,  by  any 
act  in  his  lifetime  ;  except  it  be  such  an  interest  as  the  wife  hath,  by  pro- 
vision or  consent  of  her  husband,  by  way  of  settlement.  Such  chattels 
real  are  also  subject  to  be  sold  under  execution  for  his  debts. 

8.  What  if  he  makes  no  disposition  of  them  in  his  lifetime  ? — 134 

He  cannot  devise  the  chattels  real  by  will,  and  the  wife,  after  his 
death,  will  take  the  same  in  her  own  right,  without  being  executrix  or  ad- 
ministratrix to  her  husband.  If  he  grant,  a  rent  charge,  out  of  the  same, 
without  altering  the  estate,  the  rent  charge  becomes  void  at  his  death. 

9.  What  property  in  her  chattels  real,  does  the  law  give  him  if  he 
survive  the  wife  ? — 134 

It  gives  him  her  chattels  real,  absolutely  by  survivorship  ;  for  he  was 
in  possession  of  the  chattels  real  during  the  coverture,  by  a  kind  of  joint 
tenancy  with  the  wife. 


LEC.  XXVIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  77 

10.  What  is  the  rule  respecting  the  wife's  chases  in  action  ?  — 135 

That  the  husband  has  power  to  sue  for,  and  recover  the  same  ;  and 
when  recovered,  and  reduced  to  possession,  and  riot  otherwise,  the  money 
becomes  absolutely  his  own.  The  rule  is  the  same,  if  a  legacy  or  distri- 
butive share  accrues  to  the  wife  during  coverture.  So,  he  has  power  to 
release  and  discharge  the  debts,  and  to  change  the  securities,  with  the  con- 
sent of  the  debtor. 

11.  What  if  he  dies  before  he  has  recovered  the  money  ? — 135 

The  wife  will  be  entitled  to  the  debts  in  her  own  right,  without  ad- 
ministering on  his  estate,  or  holding  the  same  as  assets  for  his  debts. 

12.  What  if  the  wife  dies,  and  he  survives  her,  before  he  has  reduced 
the  chose  in  action  to  possession  ? — 135 

It  does  not  strictly  survive  to  him ;  but  he  is  entitled  to  recover  the 
same  to  his  own  use,  by  acting  as  her  administrator.  The  husband  is 
entitled  jure  mariti,  to  administer,  and  to  take  all  her  chattels  real,  things 
in  action,  and  every  other  species  of  personal  property,  whether  reduced 
into  possession,  or  contingent,  or  recoverable  by  suit. 

13.  What  is  the  rule  as  to  the  wife's  debts  dum  sola  ? — 135 

That  if  the  wife  leaves  choses  in  action  not  reduced  into  possession 
during  her  life,  the  husband  will  be  liable  to  that  extent ;  for  those  choses 
in  action  will  be  assets  in  his  hands. 

14.  What  is  the  rule,  where  the  husband  has  administered  in  part  on 
his  wife's  estate,  and  dies,  and  administration  de  bonis  non  of  the  wife,  by 
a  third  person  or  by  the  next  of  kin  of  the  wife  is  obtained  ? — 136 

That  such  administrator  would  be  deemed  as  a  mere  trustee  for  the 
representatives  of  the  husband. 

15.  What  if  a  suit  be  brought  in  the  joint  name  of  husband  and  wife  to 
recover  the  wife's  chose  in  action,  and  he  die  before  he  had  reduced  the 
property  to  possession?  — 138 

The  wife  as  survivor  would  take  the  benefit  of  recovery  ;  and  it  is 
settled  that  in  a  suit  in  chancery,  by  the  husband,  to  recover  a  legacy,  or 
distributive  share  due  the  wife,  she  must  be  made  a  party  with  him,  and 
then  the  court  will  require  the  husband  to  make  a  suitable  provision  for 
the  wife  out  of  the  property. 

16.  How  does  a  general  assignment  in  bankruptcy,  or  under  the  insol- 
vent laws,  affect  the  wife's  property  ? — 138 

It  passes  her  property  and  choses  in  action,  but  subject  to  her  right  of 
survivorship  ;  and  if  the  husband  dies  before  the  assignees  have  reduced 
the  property  to  possession,  it  will  survive  to  the  wife,  for  the  assignees 


78  KENT'S  COMMENTARIES,  [VOL.  n. 

possess  the  same  rights  as  the  husband  before  the  bankruptcy,  and  none 
other. 

17.  What  is  the  rule   in  chancery  as  to  the  wife's  equity  to  a  rea- 
sonable provision  out  of  her  property,  for  the  support  of  herself  and  her 
children?— 139 

That  if  the  husband  wants  the  aid  of  chancery  to  enable  him  to  get  pos- 
session of  his  wife's  property,  he  must  do  what  is  equitable,  by  making  a 
suitable  provision  out  of  it  for  the  maintenance  of  her  and  her  children. 
Whether  the  suit  for  the  wife's  debt,  legacy,  or  portion,  be  by  the  husband 
or  by  his  assignees,  the  result  is  the  same,  and  a  proper  settlement  on  the 
wife  must  first  be  made  of  a  proportion  of  the  property.  The  provision  is 
to  be  apportioned,  not  merely  to  that  part  of  the  equitable  portion  of  the 
wife's  estate  which  the  husband  seeks,  but  to  the  whole  of  her  personal 
fortune,  including  what  the  husband  had  previously  received.  The  prin- 
ciple is,  that  chancery  will  lay  hold  of  the  property  of  the  wife,  as  far  as 
it  may  be  in  its  power,  for  the  purpose  of  providing  a  maintenance  for 
her  when  she  is  abandoned  by  her  husband.  The  wife's  equity  does  not 
attach,  except  upon  that  part  of  her  personal  property  in  action  which  the 
husband  cannot  acquire  without  the  assistance  of  a  court  of  equity. 

18.  What  is  the  difference  as  to  chases  in  action  belonging  to  the  wife> 
whether  the  husband  sues  in  his  own  name  exclusively,  or  jointly  with  his 
wife?— 142 

The  principle  of  the  distinction  is,  that  if  he  brings  the  action  in  his 
own  name  alone,  (as  it  is  said  he  may  for  debt  due  the  wife  upon  bond,  1 
Vern.  396.  3  Lev.  403,)  it  is  a  disagreement  to  the  wife's  interest,  and 
implies  it  to  be  his  intention  that  it  should  not  survive  her.  But  if  he 
brings  the  action  in  their  joint  names,  the  judgment  is,  that  they  shall  both 
recover,  and  the  debt  survives  to  the  wife.  The  judgment  does  not  alter 
the  property,  nor  show  it  to  be  his  intention  that  it  should  be  altered.  For 
a  summary  of  the  causes,  for  which  the  husband  may  sue  alone,  and  when  he 
must  join  with  his  wife,  see  1  Chitty  on  Pleading,  17,  21,  and  also  Tidd's 
Prac.  9. 

19.  What  is  the  rule  of  equity  in  case  the  husband  has  made  a  marriage 
settlement  on  his  wife,  in  consideration  of  her  fortune  ? — 142 

He  is  considered  in  the  light  of  a  purchaser  of  her  fortune,  and  his 
representatives  will  be  entitled,  on  his  dying  in  his  wife's  lifetime,  to  the 
whole  of  her  things  in  action,  though  not  reduced  to  possession  in  his  life- 
time, and  though  there  be  no  special  agreement  for  that  purpose. 

20.  What  is  the  rule  as  to  the  personal  property  of  the  wife,  which  she 
had  in  possession  at  the  time  of  the  marriage  ? — 143 

That  which  she  had  in  her  own  right,  and  not  en  enter  droit,  such  as 
money,  goods  and  chattels,  and  moveables,  vest  immediately  and  absolutely 


LEG.    XXVIII.]          REDUCED    TO    QUESTIONS   AND    ANSWERS.  79 

in  the  husband,  and  on  his  death  they  go  to  his  representatives,  as  being 
entirely  his  property. 

21.  What  is  the  rule  as  to  the  liability  of  the  husband  for  the   wife's 
debts  ?— 143 

That  he  is  liable  for  all  her  debts  before  coverture  ;  but  if  they  are 
not  recovered  during  the  coverture,  he  is  discharged.  The  debts  of  the 
wife  dum  sola,  are  extinguished  by  the  husband's  discharge  as  a  bankrupt 
or  insolvent.  2  Neville  <S$  Manning's  Rep.  255. 

22.  How  far  is  the  husband  liable  for  the  contracts  of  his  wife  during 
coverture  ? — 146 

The  husband  is  bound  to  provide  his  wife  with  necessaries  suitable  to 
his  condition  in  life  ;  and  if  she  contracts  debts  due  for  them  during  cohabi- 
tation, he  is  obliged  to  pay  those  debts  ;  but  for  any  thing  beyond  neces- 
saries he  is  not  chargeable.  He  is  bound  by  her  contracts  for  ordinary 
purchases,  from  a  presumed  assent  on  his  part ;  but  if  his  dissent  be  pre- 
viously made  known,  the  presumption  of  his  assent  is  rebutted.  If  the 
tradesman  furnish  goods  to  the  wife,  and  gives  the  credit  to  her,  the  hus- 
band is  not  liable,  though  she  was  at  the  time  living  with  her  husband. 
Nor  is  he  liable  for  money  lent  to  the  wife,  unless  his  request  be  averred 
and  shown.  So,  if  the  husband  makes  a  reasonable  allowance  to  the  wife 
for  necessaries  during  his  temporary  absence,  and  a  tradesman,  with  no- 
tice of  this,  supplies  her  with  goods,  the  husband  is  not  liable,  unless  the 
tradesmen  can  show,  that  the  allowance  was  not  supplied.  If  the  husband 
abandons  his  wife,  or  they  separate  by  consent,  without  any  provision  for 
her  maintenance,  or  if  he  sends  her  away,  he  is  liable  for  her  necessaries, 
and  he  sends  credit  with  her  to  that  extent.  But  if  the  wife  elope,  though 
it  be  not  with  an  adulterer,  he  is  not  chargeable  even  for  necessaries.  The 
very  fact  of  elopement  and  separation,  is  sufficient  to  put  persons  on 
inquiry,  and  whoever  gives  tke  wife  credit  afterwards,  gives  it  at  his  peril. 
The  husband  is  not  liable  unless  he  receives  his  wife  back  again.  The 
duties  of  the  wife,  while  cohabiting  with  the  husband,  form  the  considera- 
tion of  his  liability.  He  is,  accordingly,  bound  to  provide  for  her  in  his 
family  ;  and  while  he  is  not  guilty  of  cruelty,  and  is  willing  to  provide  her 
a  home,  and  all  reasonable  necessaries  there,  he  is  not  bound  to  furnish 
them  elsewhere. 

23.  What  is  the  rule  where  the  wife  elopes,  and  repents  and  returns 
again,  and  her  husband  refuses  to  receive  her  ?  — 147 

That  he  is  bound  for  her  necessaries  ;  but  it  does  not  apply  where  the 
wife  had  committed  adultery.  If  a  man  turns  away  his  wife  without  jus- 
tifiable cause,  he  is  bound  by  her  contracts  for  necessaries  suitable  to  her 
degree  and  estate.  If  they  live  together,  he  is  bound  only  by  her  con- 
tracts made  with  his  assent,  which  may  be  presumed.  If  the  wife  goes 
beyond  what  is  reasonable  and  prudent,  the  tradesman  trusts  her  at  his 
peril. 


80  KENT'S  COMMENTARIES,  [VOL.  n. 

24.  How  far  is  the  husband  liable  for  the  torts  and  frauds  of  the  wife 
committed  during  the  coverture  1  — 149 

If  committed  in  his  company,  or  by  his  order,  he  alone  is  liable.  If 
not,  they  are  jointly  liable,  and  the  wife  must  be  joined  in  the  suit  with 
her  husband.  Where  the  remedy  for  the  tort  is  only  by  damages  by  suit, 
or  fine,  the  husband  is  liable  with  the  wife ;  but  if  the  remedy  be  sought 
by  imprisonment,  on  execution,  the  husband  is  alone  liable  to  imprison- 
ment. The  wife,  during  coverture,  cannot  be  taken  on  a  ca.  sa.,  for  her 
debt  dum  sola,  without  her  husband  ;  and  if  he  escapes,  or  is  not  taken,  the 
court  will  not  let  her  lie  in  prison  alone.  If  the  tort  or  offence  be  pun- 
ished criminally,  by  imprisonment,  or  other  corporal  punishment,  the  wife 
alone  is  to  be  punished,  unless  there  be  evidence  of  coercion,  from  the 
fact,  that  the  offence  was  committed  in  the  presence,  or  by  the  command 
of  the  husband.  This  indulgence  is  extended  so  far  as  to  excuse  the  wife 
from  punishment  for  theft  committed  in  the  presence,  or  by  the  command 
of  her  husband. 

25.  What  are  the  exceptions  to  the  general  rule  of  law,  that  the  wife 
is  incompetent  to  contract  ?  — 150 

First,  a  wife  in  England,  and  those  states  in  this  country  where  fines 
exist,  may  pass  her  freehold  estate  by  a  fine,  and  this  and  a  common  re- 
covery, were  the  only  ways  in  which  she  could,  at  common  law,  convey 
her  real  estate.  She  may,  by  a  fine,  and  a  declaration  of  the  uses  there- 
of, declare  a  use  for  her  husband's  benefit.  So,  if  the  husband  and  wife 
levy  a  fine,  a  declaration  of  the  uses  by  the  husband  alone,  will  bind  the 
wife  and  her  heirs,  unless  she  disagrees  to  the  uses  during  the  coverture. 
If  the  wife  levy  a  fine  as  a.  feme  sole,  without  her  husband,  though  it  will 
be  good  as  against  her  and  her  heirs,  the  husband  may  avoid  it  during  cov- 
erture, for  the  benefit  of  the  wife,  as  well  as  for  himself.  The  wife,  may, 
as  an  attorney  to  another,  convey  an  estate  in  the  same  manner  as  her 
principal  could,  and  she  may  execute  a  po.wer  simply  collateral,  and,  in 
some  cases,  a  power  coupled  with  an  interest,  without  the  concurrence  of 
her  husband.  She  may  also  transfer  a  trust  estate,  by  lease  and  release, 
as  a.  feme  sole.  The  general  rule  of  our  American  law  is,  that  the  wife 
may  convey  by  deed  ;  that  she  must  be  privately  examined  ;  that  the  hus- 
band must  show  his  concurrence  to  the  wife's  conveyance  by  becoming  a 
party ;  and  that  the  cases  in  which  her  deed  without  such  concurrence  is 
valid,  are  to  be  exceptions  to  the  general  rule. 

Second,  If  the  husband  was  banished,  or  had  abjured  the  realm,  it  was 
an  ancient  and  another  necessary  exception  to  the  general  rule  of  the 
wife's  disability  to  contract,  and  if  the  husband  be  an  alien  living  abroad, 
the  reason  of  the  exception  also  applies. 

26.  How  is  the  rule  of  law,  that  a  woman  cannot  hold  personal  prop- 
erty, independent  of  her  husband,  taken  in  equity  ?  — 162 

It  is  not  received  in  equity,  and  a  married  woman  may,  through  the 
medium  of  a  trustee,  enjoy  property  as  freely  as  a.  feme  sole  ;  and  it  is  not 


LEG.  XXVIII.]  REDUCED  TO   QUESTIONS  AND  ANSWERS.  81 

unusual  to  convey  or  bequeath  property  to  a  trustee  in  trust,  to  pay  the  in- 
terest or  income  thereof  to  the  wife  to  her  separate  use,  free  from  the 
debts  of  her  husband,  and  payable  upon  her  separate  order  or  receipt.  In 
such  case,  the  husband  has  no  interest  in  the  property.  It  is  not  neces- 
sary that  the  trustee  should  be  a  stranger.  The  husband  himself  may  be 
trustee.  Gifts  from  the  husband  to  the  wife  may  be  supported,  as  her 
separate  property,  if  they  be  not  prejudicial  to  creditors,  even  without  the 
intervention  of  trustees.  She  may  institute  a  suit  by  her  next  friend, 
against  him,  and  she  may  obtain  an  order  to  defend  separately,  suits 
against  her. 

27.  What  are  the  cases  in  which  equity  allows  a  wife  to  institute  a  suit 
against  her  husband  ? — 164 

When  any  thing  is  given  to  her  for  her  separate  use,  or  her  husband 
refuses  to  perform  marriage  articles,  or  articles  for  a  separate  maintenance  ; 
or  where  the  wife,  being  deserted  by  her  husband,  hath  acquired  by  her 
labour  a  separate  property,  of  which  he  hath  plundered  her.  The  acqui- 
sitions of  the  wife,  in  such  a  case,  are  her  separate  property. 

28.  What  is  the  rule  as  to  the  obligation  of  the  wife  to  perform  her 
covenant  or  warranty  1 — 168 

That,  though  the  wife  may  convey  her  estate  by  deed,  she  will  not 
be  bound  by  a  covenant  to  levy  a  fine,  or  convey  her  estate.  The  agree- 
ment of  a  feme  covert,  with  the  assent  of  her  husband,  to  sell  her  estate, 
is  absolutely  void  at  law,  and  the  courts  of  equity  never  enforce  such  a 
contract  against  her. 

29.  What  is  the  rule  with  respect  to  antenuptial  agreements  ? — 172 

That  equity  will  grant  its  aid,  and  enforce  a  specific  performance  of 
them,  provided  the  agreement  be  fair  and  valid,  and  the  intention  of  the 
parties  consistent  with  the  principles  and  policies  of  the  law.  Equity  will 
execute  covenants  in  marriage  articles  at  the  instance  of  any  person  who 
is  within  the  influence  of  the  marriage  consideration,  and  in  favour  of 
collateral  relations. 

Settlements  after  marriage,  if  made  in  pursuance  of  an  agreement  in 
writing  entered  irrto  prior  to  the  marriage,  are  valid,  both  against  purcha- 
sers and  creditors.  The  marriage  is,  of  itself,  a  valuable  consideration  for 
the  agreement,  and  sufficient  to  give  validity  to  the  settlement.  Chancery 
will  not  carry  into  execution  articles  of  agreement  between  husband  and 
wife.  The  married  parties  have  no  power  to  vary  the  rights  and  duties 
'growing  out  of  the  marriage  contract,  or  to  effect  at  their  pleasure  a  partial 
dissolution  of  the  contract. 

30.  What  is  the  rule,  as  to  the  right  of  the  husband  or  wife,  to  be  a  wit- 
ness for  or  against  each  other  ?  — 178 

It  is  a  settled  principle  of  law,  founded  upon  public  policy,  that  the 
husband  and  wife  cannot  be  witnesses,  neither  for  nor  against  each  other. 
11 


82  KENT'S  COMMENTARIES,  [VOL.  n 

Nor  can  either  of  them  be  permitted  to  give  any  testimony  either  in  a  civil 
or  criminal  cases,  which  goes  to  criminate  the  other ;  and  the  rule  is  so 
inviolable,  that  no  consent  will  authorize  the  breach  of  it.  But  where  the 
wife  acts  as  her  husband's  agent,  her  declarations  have  been. admitted  in 
evidence  to  charge  him.  Dying  declarations  of  the  wife  have  been  ad- 
mitted in  a  civil  suit  against  her  husband. 

29.  What  authority  may  the  husband  exercise  over  the  person  of  his 

wife?— 181 

As  he  is  guardian  of  the  wife,  and  is  bound  to  protect  and  maintain  her, 
the  law  has  given  him  a  reasonable  superiority  and  control  over  her  person, 
and  he  may  even  put  gentle  restraints  upon  her  liberty,  if  her  conduct  be 
such  as  to  require  it.  The  husband  is  the  best  judge  of  the  wants  of  the 
family  and  the  means  of  supplying  them,  and  if  he  shifts  his  domicil  the 
wife  is  bound  to  follow  him  wherever  he  chooses  to  go. 


LECTURE    XXIX. 

* 

OF  PARENT  AND  CHILD. 

1.  In  what  do  the  duties  of  parents  to  their  children,  as  their  natural 
guardians  consist  ? — 1 89 

In  maintaining  and  educating  them  during  the  season  of  infancy  and 
youth,  and  in  making  reasonable  provision  for  their  future  usefulness  and 
happiness  in  life,  by  a  situation  suited  to  their  habits,  and  a  competent 
provision  for  the  exigencies  of  that  situation. 

2.  How  far  is  the  parent  bound  by  law  to  provide  for  the  child  1 — 190 

Until  the  latter  is  in  a  condition  to  provide  for  its  own  maintenance, 
and  the  obligation  extends  no  further  than  to  necessary  support.  The 
obligation  of  the  father  to  maintain  his  child,  ceases  as  soon  as  the  child 
comes  of  age,  however  wealthy  the  father  may  be,  unless  the  child  becomes 
chargeable  to  the  public  as  a  pauper,  and  the  statute  extends  only  to  rela- 
tions by  blood,  and  the  husband  is  not  liable  for  the  expenses  of  the  main- 
tenance of  the  child  of  the  wife  by  a  former  husband,  nor  for  the  expense 
of  the  maintenance  of  the  wife's  mother ;  if  he  takes  the  child  to  his 
house  he  is  liable  as  father.  The  father  is  entitled  to  the  custody  of  the 
persons  of  his  children,  and  to  the  value  of  their  labour  during  their  mi- 
nority. He  may  also  maintain  trespass  for  a  tort  to  an  infant  child,  provi- 
ded he  can  show  a  loss  of  services,  for  that  is  the  gist  of  the  action  by 
the  father. 


EC.  XXX.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  83 

3.  What  are  the  duties  of  children  to  their  parents  ?— 207 

Obedience  and  assistance  during  their  own  minority,  and  gratitude 
and  reverence  during  the  rest  of  their  lives. 

4.  What  where  the  Athenian  and  Roman  laws  on  the  subject  of  parents 
supporting  their  children  1  —  207 

They  where  so  strict  in  enforcing  the  performance  of  this  natural 
duty,  that  they  would  not  allow  the  father  to  disinherit  the  child  from  pas- 
sion or  prejudices,  but  only  for  substantial  reasons,  to  be  approved  of  by 
a  court  of  justice. 

5.  How  were  the  duties  of  children  to   their  parents  enforced  by  the 
Athenians  1 — 207 

Solon  ordered  all  persons,  who  refused  to  make  due  provisions  for 
their  parents,  to  be  punished  with  infamy ;  and  the  same  penalty  was  in- 
curred for  personal  violence  towards  them. 

6.  How  does  the  law  consider  an  illegitimate  child? — 212 

As  nullius  filius,  or  as  the  civil  law,  from  the  difficulty  of  ascertaining 
the  father,  equally  concluded,  patrem  habere  non  intelliguntur,  he  has 
no  inheritable  blood.  A  bastard  is  incapable  of  inheriting  as  heir,  either 
to  his  putative  father  or  his  mother,  or  any  one  else,  nor  can  he  have  heirs 
but  of  his  own  body. 


LECTURE    XXX. 

OF  GUARDIAN  AND  WARD. 

1.  How  many  kinds  of  guardianship  are  there  ? — 216 

There  are  two :  one  by  the  common  law  and  one  by  the  statute. 

2.  How  many  kinds  of  guardianship  were  there  at  the  common  law  ? 

—217 

Three  ;  viz.,  guardian  by  nature,  guardian  by  nurture,  and  guardian 
in  socage. 

3.  Who  is  guardian  by  nature  ? — 218 
The  father. 


84  KENT'S  COMMENTARIES,  [VOL.  n. 

4.  If  the  father  died,  who  was  the  guardian? — 217 
The  mother. 

'     5.  How  far  does  this  guardianship  extend  ? — 221 

It  extends  only  to  the  custody  of  the  person  of  the  child,  until  the 
age  of  twenty-one  years,  and  it  yielded  to  guardianship  in  socage. 

6.  What  is  the  extent  of  guardianship  by  nurture  ? — 221 

It  extends  only  to  the  person,  and  determines  when  the  infant  arrives 
at  the  age  of  fourteen,  in  the  case  both  of  males  and  females.  This  guar- 
dianship is  said  to  apply  only  to  younger  children,  who  are  not  heirs  ap- 
parent ;  and  as  all  the  children  inherit  equally  under  our  laws,  it  would 
seem  that  this  species  of  guardianship  has  become  obsolete. 

7.  What  authority  has  the  guardian  in  socage  ? — 222 

He  has  the  custody  of  the  infant's  lands,  as  well  as  his  person.  It 
applies  only  to  lands  which  the  infant  acquires  by  descent ;  and  the  com- 
mon law  gave  this  guardianship  to  the  next  of  blood  to  the  child,  to  whom 
the  inheritance  could  not  possibly  descend  ;  and  therefore,  if  the  land  de- 
scended to  the  heir  on  the  part  of  the  father,  the  mother,  or  next  relation 
on  the  part  of  the  mother,  had  the  wardship  ;  and  so  if  the  land  descended 
to  the  heir  on  the  part  of  the  mother,  the  father,  or  his  next  of  blood,  had 
the  wardship. 

8.  When  do  guardians  in  socage  cease  ? — 222 

When  the  child  arrives  at  the  age  of  fourteen  years,  for  he  is  then 
entitled  to  elect  his  own  guardian,  and  oust  the  guardian  in  socage,  who  is 
then  accountable  to  the  heir  for  the  rents  and  profits  of  the  estate. 

9.  What  if  the  infant  does  not  elect  a  guardian  ? — 222 
The  guardian  in  socage  continues. 

10.  On  what  are  testamentory  guardians  founded  ? — 224 

On  the  deed,  or  last  will  of  the  father,  and  they  supercede  the  claims 
of  any  other  guardian. 

11.  Who  are  chancery  guardians  1 — 226 

Guardians  appointed  by  the  court  of  chancery,  or  other  tribunals, 
having  jurisdiction  in  testamentary  matters.  The  chancery  guardian,  con- 
tinues until  the  majority  of  the  infant,  and  is  not*controlled  by  the  election 
of  the  infant  when  he  arrives  at  the  age  of  fourteen. 

12.  In  whom  does  the  general  jurisdiction  over  guardians  reside  ? — 227 
In  the   court  of  chancery  ;  but  they  may  be  cited  and  compelled  to 


LEC.  XXX.]        REDUCED  TO  QUESTIONS  AND  ANSWERS.         .    85 

appear,  before  the  surrogate,  but  his  powers  in  these  respects  are  not 
final. 

13.  What  is  the  practice  in  chancery  on  the  appointment  of  a  guardian  ? 

—227 

The  practice  is  to  require  a  master's  report  approving  of  the  person 
and  security  offered.  The  court  may,  in  its  discretion,  appoint  one  per- 
son guardian  of  the  person,  and  another  guardian  of  the  estate,  in  like 
manner  as  in  cases  of  lunatics  and  idots,  there  may  be  one  committee  of 
the  person,  and  another  of  the  estate.  The  guardian  or  committee  of  the 
estate,  always  is  required  to  give  adequate  security,  but  the  committee  of 
the  person  gives  none. 

14.  What  are  the  legal  responsibilities  of  a  guardian  to  his  ward  ?— 229 

His  trust  is  one  of  obligation  and  duty,  and  not  of  speculation  and 
profit.  He  cannot  reap  any  benefit  from  the  use  of  his  ward's  money. 
He  cannot  act  for  his  own  benefit  in  any  contract,  or  purchase,  or  sale,  as 
to  the  subject  of  the  trust.  If  he  settles  a  debt  upon  beneficial  terms,  or 
purchases  it  at  a  discount,  the  advantage  is  to  accrue  entirely  to  the  infant's 
benefit.  He  is  liable  to  an  action  of  account  at  common  law,  by  the  in- 
fant, after  he  comes  of  age  ;  and  the  infant,  while  under  age,  may,  by  his 
next  friend,  call  the  guardian  to  account  by  a  bill  in  chancery.  Every 
guardian  is  bound  to  keep  safely  the  personal  estate  of  his  ward,  and  to 
account  for  the  personal  estate,  and  for  the  issues  and  profits  of  the  real 
estate  ;  and  if  he  suffers  any  waste,  sale  or  destruction  of  the  inheritance, 
he  is  liable  to  be  removed,  and  to  answer  in  treble  damages.  If  the  guar- 
dian has  been  guilty  of  negligence  in  the  keeping  or  disposition  of  the 
infant's  funds,  whereby  the  estate  has  incurred  a  loss,  the  guardian  will  be 
obliged  to  sustain  that  loss.  If  the  guardian  puts  the  ward's  money  in 
trade,  the  ward  will  be  entitled  to  elect  to  take  the  profits  of  the  trade,  or 
the  principal,  with  compound  interest,  to  meet  those  profits  when  the  guar- 
dian will  not  disclose  them.  So,  if  he  neglects  to  put  the  ward's  money 
at  interest,  but  negligently  suffers  it  to  lie  idle,  or  mingles  it  with  his  own, 
the  court  will  charge  him  with  simple  interest,  and  in  cases  of  gross  de- 
linquency, with  compound  interest.  These  principles  apply  to  trustees  of 
every  kind. 


86  KENT'S  COMMENTARIES,  [VOL.  n. 

LECTURE    XXXI. 
OF  INFANTS. 

1.  From  what  does  the  necessity  of  guardians  result,  and  how  long  does 
this  inability  continue  in  contemplation  of  law  ? — 232 

It  results  from  the  inability  of  infants  to  take  care  of  themselves  ; 
and  it  continues  in  contemplation  of  law,  until  the  infant  has  attained  the 
age  of  twenty-one  years.  The  age  of  twenty-one  is  the  period  of  ma- 
jority for  both  sexes,  according  to  the  English  common  law,  and  that  age 
is  completed  on  the  day  preceding  the  anniversary  of  the  person's  birth. 
The  age  of  twenty-one  is  probably  the  period  of  absolute  majority  through- 
out the  United  States,  though  female  infants,  in  some  of  them,  have  en- 
larged capacity  to  act  at  the  age  of  eighteen.  In  Ohio,  females  are  deemed 
of  full  age  in  respect  to  contracts,  at  the  age  of  eighteen.  Louisiana  and 
France  follow  in  this  respect  the  common  law  period  of  limitation,  though 
entire  majority  by  the  civil  law,  as  to  females  as  well  as  males,  was  not 
until  the  age  of  twenty-five  ;  and  Spain  and  Holland  follow,  as  to  males, 
the  rule  of  the  civil  law.  Nor  can  infants  do  any  act  to  the  injuiy  of  their 
property,  which  they  may  not  avoid,  or  rescind,  when  they  arrive  at  full 
age.  The  responsibility  of  infants  for  crimes  by  them  committed,  depends 
less  on  their  age,  than  on  the  extent  of  their  discretion  and  capacity  to 
discern  right  and  wrong. 

2.  What  acts  are  binding  on  infants  ? — 239 

Contracts  for  necessaries  are  binding  upon  an  infant,  and  he  may  be 
sued  and  charged  in  execution  on  such  a  contract,  provided  the  articles 
were  necessary  for  him  under  the  circumstances  and  condition  in  which 
he  was  placed. 

3.  How  is  the  question  of  necessaries  governed? — 239 

By  the  real  circumstances  of  the  infant,  and  not  by  his  ostensible  sit- 
uation ;  and,  therefore,  the  tradesman  who  trusts  him  is  bound  to  make 
due  inquiry,  and  if  the  infant  has  been  properly  supplied  by  his  friends, 
the  tradesman  cannot  recover.  Lord  Coke  considers  the  necessaries  of 
the  infant  to  include  victuals,  clothing,  medical  aid,  and  "  good  teaching  or 
instruction,  whereby  he  may  profit  himself  afterwards." 

4.  If  the  infant  lives  with  his  father,  or  guardian,  and  their  care  and 
protection  are  duly  exercised,  can  he  bind  himself  even  for  necessaries  ? 
—239 

He  cannot. 

5.  Is  infancy  permitted  to  protect  fraudulent  acts? — 240 


LEG.  XXXI.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  87 

No,  it  is  not ;  and  therefore,  if  an  infant  takes  an  estate,  and  agrees 
to  pay  rent,  he  cannot  protect  himself  from  the  rent,  by  pretence  of  infan- 
cy, after  enjoying  the  estate,  when  of  age.  If  he  receives  rents,  he  can- 
not demand  them  again  when  of  age  according  to  the  doctrine  as  now  un- 
derstood. If  an  infant  pays  money  on  his  contract,  and  he  enjoys  the 
benefit  of  it,  and  then  avoids  it  when  he  comes  of  age.  he  cannot  recover 
back  the  consideration  paid.  On  the  other  hand,  if  he  avoids  an  execu- 
ted contract  when  he  comes  of  age,  on  the  ground  of  infancy,  he  must 
restore  the  consideration  which  he  had  received.  The  privilege  of  infan- 
cy is  to  be  used  as  a  shield,  not  as  a  sword.  He  cannot  have  the  benefit 
of  the  contract  on  one  side,  without  returning  the  equivalent  on  the  other. 
But  there  are  many  hard  cases  in  which  the  infant  cannot  be  held  bound 
by  his  contracts,  though  made  in  fraud  ;  for  infants  would  lose  all  protec- 
tion if  they  were  to  be  bound  by  their  contracts  made  by  improper  artifi- 
ces, in  the  heedlessness  of  youth,  before  they  had  learned  the  value  of 
character,  and  the  just  obligation  of  moral  duties.  Where  an  infant  had 
fradulently  represented  himself  to  be  of  age  when  he  gave  a  bond,  it  was 
held  that  the  bond  was  void  at  law.  But  where  he  obtained  goods  upon 
his  false  and  fraudulent  affirmation  that  he  was  of  age,  though  he  avoided 
payment  of  the  price  of  the  goods,  on  the  plea  of  infancy,  the  vendor  was 
held  entitled  to  reclaim  the  goods,  as  having  never  parted  with  his  pro- 
perty in  them ;  and  it  ha.s  been  suggested,  in  another  case,  that  there 
might  be  an  instance  of  such  gross  and  palpable  fraud,  committed  by  an 
infant  arrived  at  the  age  of  discretion,  as  would  render  a  release  of  his 
right  to  land  binding  upon  him.  Infants  are  liable  in  actions  arising  ex 
delicto,  whether  founded  on  positive  wrongs,  as  trespass  or  assault ;  or 
constructive  torts,  or  frauds.  But  the  fraudulent  act,  to  charge  him,  must 
be  wholly  tortious  ;  and  a  matter  arising  excontractu,  though  infected  with 
fraud,  cannot  be  changed  into  a  tort  in  order  to  charge  the  infant  in  trover, 
or  case,  by  a  change  in  the  form  of  the  action.  He  is  liable  in  trover  for 
tortiously  converting  goods  intrusted  to  him  ;  and  in  detinue,  for  goods  de- 
livered upon  a  special  contract  for  a  specific  purpose  ;  and  in  assumpsit, 
for  money,  which  he  has  fraudulently  embezzled. 

6.  If  an  infant  be  made  a  defendant  in  equity,  at  the  suit  of  a  creditor, 
will  the  answer  of  the  guardian  ad  litem,  be  binding  or  conclusive  ? — 245 

No;  it  will  not. 

7.  How  will  such  an  answer  in   chancery  pro  forma,  leave  the  plain- 
tiff?—245 

It  leaves  the  plaintiff  to  prove  his  case,  and  throws  the  infant  upon 
the  protection  of  the  court. 

8.  What  was  the  maxim  of  the  Roman  law  in  this  respect  ? — 245 

It  was  the  maxim  of  the  Roman  law,  that  an  infant  was  never  pre- 
sumed to  have  done  an  act  to  his  prejudice,  pupillus  pati  posse  non  intelli- 
gitur.  In  decrees  against  an  infant  there  is,  according  to  the  old  and  set- 
tled rule  of  practice  in  chancery,  a  day  given  him  when  he  comes  of  age, 


88  KENT'S  COMMENTARIES,  [VOL.  n. 

usually  six  months,  to  show  cause  against  the  decree,  and  make  a  better 
defence,  and  he  is  entitled  to  be  called  in  for  that  purpose  by  process  of 
subp&na.  The  decree  in  ordinary  cases  would  be  bad  on  the  face  of  it, 
and  ground  for  a  bill  of  review,  if  it  omitted  to  give  the  infant  a  day  to 
show  cause  after  he  came  of  age  ;  though  Lord  Redesdale  held,  in  Ben- 
nett v.  Hamill,  that  such  an  error  in  the  decree  would  not  affect  a  bona 
Jlde  purchase  at  a  sale  under  it.  But  in  the  case  of  decrees  for  the  fore- 
closure and  sale  of  mortgaged  premises,  or  for  the  sale  of  lands  under  a 
devise  to  pay  debts,  the  infant  has  no  day,  and  the  sale  is  absolute.  In  the 
case  of  a  strict  foreclosure  of  the  mortgagor's  right  without  a  sale,  the  in- 
fant has  his  day  after  he  comes  of  age,  but  then  he  is  confined  to  show- 
ing errors  in  the  decree,  and  cannot  unravel  the  accounts,  nor  redeem. 


LECTURE    XXXII. 
OF  MASTER  AND  SERVANT. 

1.  What  are  the  several  kinds  of  persons  that  come  within  the  descrip- 
tion of  servants  ? — 246 

1.  Slaves.     2.  Hired  servants.     3.  Apprentices. 

2.  How,  according  to  the  Institutes  of  Justinian,  might  a  person  become 
a  slave  ? — 246 

In  three  ways  : — 1.  By  birth  when  the  mother  was  a  slave.  2.  By 
captivity  in  war.  3.  By  the  voluntary  sale  of  himself  as  a  slave,  by  a 
freeman,  above  the  age  of  twenty,  for  the  purpose  of  sharing  the  price. 

3.  How  is  the  relation  of  master  and  servant,  of  the  second  class 
formed  ? — 258 

By  contract.  The  one  is  bound  to  render  service,  and  the  other  to 
pay  a  stipulated  consideration.  But  if  the  servant  hired  for  a  definite  pe- 
riod, leaves  the  service  before  the  end  of  it,  without  reasonable  cause,  or 
is  dismissed  for  justifiable  cause,  he  loses  his  right  to  wages  for  the  period 
he  has  served. 


4.  For  what  cause  may*  servant  be  dismissed  ? — 259 

Either  for  immoral  conduct,  wilful  disobedience,  or  habitual  neglect. 

5.  What  is  the  rule  with  respect  to  the  obligation  of  the  master  for  the 
acts  and  contracts  of  his  servant  ? — 259 


LEC.  XXXIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  89 

That,  the  master  is  bound  by  the  act  of  his  servant,  either  in  respect 
to  contracts  or  injuries,  when  the  act  was  done  by  authority  of  the  master. 
If  the  servant  does  an  injury  fraudulently,  while  in  the  immediate  employ 
of  his  master,  the  master,  as  well  as  the  servant,  has  been  held  liable  in 
damages  ;  and  he  is  also  said  to  be  liable  if  the  injury  proceeds  from 
negligence,  or  want  of  skill  in  the  servant,  for  it  is  the  duty  of  the  master 
to  employ  servants  who  are  honest,  skilful,  and  careful. 

6.  What  is  the  rule  as  to  liability  of  the  master,  if  the  servant  employs 
another  servant  to  do  his  business  ? — 260 

If  the  servant  so  employed,  be  guilty  of  an  injury,  the  master  is  liable. 
But  to  render  this  rule  applicable,  the  nature  of  the  business  must  be  such 
as  to  require  the  agency  of  subordinate  persons,  and  then  there  is  an  im- 
plied authority  to  employ  such  persons.  A  servant  may  justify  a  battery 
in  the  necessary  defence  of  his  master. 

7.  What  persons  come  under  the  description  of  apprentices  ? — 261 

Persons  who  are  bound  to  service  for  a  term  of  years,  to  learn  some 
art  or  trade.  They  are  the  subject  of  statute  regulations  in  almost,  if  not 
quite,  every  state  in  the  Union,  or  perhaps  in  Europe. 


LECTURE    XXXIII. 
OF  CORPORATIONS. 

1.  What  is  a  corporation  ?— 267 

A  corporation  is  a  franchise  possessed  by  one  or  more  individuals, 
who  subsist  as  a  body  politic,  under  a  special  denomination,  and  vested  by 
the  policy  of  the  law,  with  the  capacity  of  perpetual  succession,  and  of 
acting,  in  several  respects,  however  numerous  the  association  may  be,  as 
a  single  individual. 

2.  What  is  the  object  of  this  institution  ? — 267 

To  enable  the  members  to  act  by  one  united  will,  and  to  continue 
their  joint  powers  and  property  in  the  same  body,  undisturbed  by  the 
change  of  members,  and  without  the  necessity  of  perpetual  conveyances, 
as  the  rights  of  members  pass  from  one  individual  to  another.  All  the 
individuals  composing  a  corporation,  and  their  successors,  are  considered 
in  law  but  as  one  moral  person,  capable,  under  an  artificial  form,  of  taking 
and  conveying  property,  contracting  debts  and  duties,  and  of  enjoying  a 
12 


90  KENT'S  COMMENTARIES,  [VOL-  11, 

variety  of  political  and  civil  rights.  One  of  the  peculiar  properties  of  a 
corporation,  is  the  power  of  perpetual  succession ;  for,  in  judgment  of  law, 
it  is  capable  of  idefinate  duration.  The  rights  and  privileges  of  a  corpora- 
tion do  not  determine,  or  vary,  uj»on  the  death  or  change  of  any  individual 
members.  They  continue  as  long  as  the  corporation  endures. 

3.  For  what  purpose  were  corporations  invented  ? — 268 

It  was  chiefly  for  the  purpose  of  clothing  bodies  of  men  in  succession, 
with  the  qualities  and  capacities  of  one  single,  artificial,  and  fictitious 
being,  that  they  were  originally  invented,  and  for  the  same  convenient 
purpose,  they  have  been  brought  largely  into  use. 

4.  How  far  back  may  we  trace  the  history  of  corporations  ?— 268 

They  were  well  known  to  the  Roman  law,  and  they  existed  from  the 
earliest  periods  of  the  Roman  republic.  It  would  appear,  from  a  passage 
in  the  Pandects,  that  they  were  copied  from  the  laws  of  Solon,  who  per- 
mitted private  companies  to  institute  themselves  at  pleasure,  provided  they 
did  nothing  contrary  to  public  law.  But  the  Romans  were  not  so  indulgent 
as  the  Greeks.  They  were  very  jealous  of  such  combinations  of  indi- 
viduals, and  they  restrained  those  that  were  not  specially  authorized  ;  and 
every  corporation  was  illicit  that  was  not  ordained  by  the  decree  of  the 
senate,  or  of  the  emperor.  In  the  age  of  Augustus,  as  we  are  informed 
by  Suetonius,  certain  corporations  had  become  nurseries  of  faction  and 
disorder,  and  that  emperor  interposed,  as  Julius  Caesar  had  done  before 
him,  and  dissolved  all  but  ancient  and  legal  corporations.  We  find,  also, 
in  the  younger  Pliny,  a  singular  instance  of  the  extreme  jealousy  indulged 
by  the  Roman  government  of  these  corporations.  A  destructive  fire  in 
Nicomedia,  induced  Pliny  to  recommend  to  the  emperor  Trajan,  the  insti- 
tution, for  that  city,  of  a  fire  company  of  150  men,  (collegium  fabrorum,) 
with  an  assurance,  than  none  but  those  of  that  business  should  be  admitted 
into  it,  and  that  the  privileges  granted  them  should  be  extended  to  no  other 
purpose.  But  the  emperor  refused  the  grant,  and  observed,  that  societies 
of  that  sort  had  greatly  disturbed  the  peace  of  the  cities  ;  and  that  what- 
ever name  he  gave  them,  and  for  whatever  purpose  they  might  be  institu- 
ted, they  would  not  fail  to  be  mischievous. 

5.  How  are  the  powers  and  capacities  of  corporations  considered  under 
the  English  law  ?— 269 

They  very  much  resemble  those  under  the  civil  law ;  and  it  is  evi- 
dent, the  principles  applicable  to  corporations  under  the  former,  were 
borrowed  from  the  Roman  law,  and  from  the  policy  of  the  municipal 
corporations  established  in  Britain  and  the  other  Roman  colonies,  after 
these  countries  had  been  conquered  by  the  Roman  arms.  Under  the  latter 
system,  corporations  were  divided  into  ecclesiastical  and  lay,  civil  and 
eleemosynary. 

6.  Under  what  disabilities  were  they  placed  ? — 269 


LEG.  XXXIII.]          REDUCF.D    TO    QUESTIONS  AND    ANSWERS.  91 

They  could  not  purchase,  or  receive  donations  of  land,  without  license, 
nor  could  they  alienate  without  just  cause.  They  could  only  act  by 
attorney ;  and  the  act  of  the  majority  bound  the  whole  ;  and  they  were 
dissolved  by  death,  surrender,  or  forfeiture. 

7.  When  did  corporations  for  the  advancement  of  learning  come  into 
use?— 270 

Not  until  about  the  13th  century,  though  they  may  be  said  to  have 
existed  in  an  imperfect  form,  at  a  much  earlier  period. 

8.  About  what  time  were  civil  or  municipal  corporations  established  in 
Europe,  for  political  and  commercial  purposes  ? — 271 

Cities,  towns,  and  fraternities,  were  invested  with  corporate  powers 
and  privileges,  and  with  a  large  share  of  civil  and  criminal  jurisdiction ; 
in  the  early  periods  of  the  history  of  modern  Europe.  These  immunities 
were  sought  after  from  a  spirit  of  liberty  as  well  as  monopoly,  and  created 
as  barriers  against  feudal  tyranny.  They  afforded  protection  to  commerce 
and  the  mechanic  arts,  and  formed  some  counterpoise  to  the  exorbitant 
powers,  and  unchecked  rapacity  of  the  feudal  barons.  By  this  means, 
order  and  security,  trade,  and  the  arts  revived  in  Italy,  France,  Germany, 
Flanders,  and  England.  But  although  corporations  were  found  to  be  very 
beneficial  in  the  earlier  periods  of  modern  European  history,  in  keeping 
alive  the  spirit  of  liberty,  and  in  sustaining  and  encouraging  the  efforts  for 
social  and  intellectual  improvement,  their  exclusive  privileges  have  too 
frequently  served  as  monopolies,  checking  the  free  circulation  of  labour, 
and  enhancing  the  price  of  the  fruits  of  industry.  Dr.  Smith  does  not 
scruple  to  consider  them,  throughout  Europe,  as  generally  injurious  to  the 
freedom  of  trade,  and  the  progress  of  improvement. 

9.  How  are  corporations  divided  in  the  United  States  ? — 273 
Into  aggregate  and  sole. 

10.  What  is  a  corporation  sole  ? — 273 

It  consists  of  a  single  person,  who  is  made  a  body  corporate  and 
politic,  in  order  to  give  him  some  legal  capacities  and  advantages,  and 
especially  that  of  perpetuity,  which,  as  a  natural  person,  he  cannot  have. 
A  bishop,  dean,  parson,  and  vicar,  are  given  in  the  English  books,  as  in- 
stances of  sole  corporations. 

11.  What  are  corporations  aggregate? — 274 

The  union  of  two  or  more  individuals  in  a  body  politic,  with  capacity 
of  succession  and  perpetuity. 

12.  What  kind  of  corporations  are  most  in  use  ? — 274 
Aggregate  corporations  are  most  in  use  with  us. 


92  KENT'S  COMMENTARIES,  [VOL.  n. 

13.  What  is  meant  by  ecclesiastical  corporations  1 — 274 

They  are  those  of  which  the  members  are  spiritual  persons,  and  the 
object  of  the  institution  is  also  spiritual.  With  us,  they  are  called  religious 
corporations. 

14.  How  are  lay  corporations  divided? — 274 
Into  eleemosynary  and  civil. 

15.  What  is  an  eleemosynary  corporation  ? — 274 

It  is  a  private  charity,  constituted  for  the  perpetual  distribution  of 
alms.  In  this  class  may  be  ranked,  hospitals  for  the  relief  of  poor,  sick, 
and  impotent  persons,  and  colleges  and  academies  established  for  the  pro- 
motion of  learning,  and  endowed  with  property,  by  public  and  private 
donations. 


16.  How  are  civil  corporations  divided  ? — 275 
Into  private  and  public. 


17.  What  are  public  corporations  ? — 275 

Such  as  are  created  by  government  for  political  purposes,  as  coun- 
ties, cities,  towns,  and  villages.  A  bank  created  by  the  government,  for 
its  own  uses,  and  where  the  stock  is  exclusively  owned  by  the  government, 
is  a  public  corporation.  So,  is  a  hospital  created  and  endowed  by  the 
government,  for  general  purposes.  But  a  bank,  whose  stock  is  owned  by 
private  persons,  is  a  private  corporation,  though  its  objects  and  operations 
partake  of  a  public  nature,  and  though  the  government  may  become  a 
partner  in  the  association  by  sharing  with  the  corporators  in  the  stock. 

18.  What  are  the  ordinary  powers  of  a  corporation  ? — 277 

I.  To  have  perpetual  succession,  and,  of  course,  the  power  of  elect- 
ing members  in  the  room  of  those  removed  by  death  or  otherwise.  2.  To 
sue  and  be  sued,  and  to  grant  and  receive,  by  their  corporate  name.  3. 
To  purchase  and  hold  lands  and  chattels.  4.  To  have  a  common  seal. 
5.  To  make  by-laws  for  the  government  of  the  corporation.  6.  The 
power  of  a  motion,  or  removal  of  members. 

19.  What  are  quasi  corporations  ? — 278 

Persons  who  are  invested  with  a  corporate  capacity  for  particular 
specified  ends  ;  as  overseers  of  the  poor,  commissioners  of  highways,  and 
trustees  of  common  schools,  are  invested  with  corporate  attributes  sub 
modo. 

20.  What  is  the  modern  doctrine  respecting  corporate  powers  1 — 298 
It  is  to  consider  corporations  as  having  such  powers  as  are  specifi- 


LEC.  XXXV.]     REDUCED  TO  QUESTIONS  AND  ANSWERS.  93 

cally  granted  by  the  act  of  incorporation,  or  as  necessary  for  the  purpose 
of  carrying  into  effect  the  powers  expressly  granted,  and  not  as  having  any 
other.  This  is  the  declared  doctrine  of  the  supreme  court  of  the  United 

States. 


LECTURE    XXXIV. 

OF  THE  HISTORY,  PROGRESS,  AND  ABSOLUTE 
RIGHTS  OF  PROPERTY. 

1.  What  is  the  natural  and  original   method  of  acquiring  property? 
—  318 

Occupancy.  There  is  no  person,  even  in  his  rudest  state,  who  does 
not  feel  and  acknowledge,  in  a  greater  or  less  degree,  the  justice  of  this 
title.  The  right  of  property,  founded  upon  occupancy,  is  suggested  to  the 
human  mind,  by  feeling  and  reason,  prior  to  the  influence  of  positive  in- 
stitutions. There  have  been  modern  theorists,  who  have  considered  sep- 
arate and  exclusive  property,  as  the  cause  of  injustice,  and  the  unhappy 
result  of  government  and  artificial  institutions.  But  human  society  would 
be  in  a  most  unnatural  and  miserable  condition,  if  it  were  possible  to  be 
instituted  or  reorganized  upon  the  basis  of  such  speculations.  The  sense 
of  property  is  graciously  bestowed  upon  mankind,  for  the  purpose  of  rous- 
ing them  from  sloth,  and  stimulating  them  to  action.  It  leads  to  the  culti- 
vation of  the  earth,  the  institution  of  government,  the  establishment  of 
justice,  the  acquisition  of  the  comforts  of  life,  the  growth  of  the  useful 
arts,  the  spirit  of  commerce,  the  productions  of  taste,  the  erections  of 
charity,  and  the  display  of  the  benevolent  affections. 


LECTURE    XXXV. 

OF  THE  NATURE  AND  VARIOUS  KINDS  OF  PERSONAL 

PROPERTY. 

1.  Of  what  does  personal  property  usually  consist? — 341 

It  usually  consists  of  things  temporary  and  moveable,  but  it  includes 
all  subjects  of  property  not  of  a  freehold  nature,  nor  descendible  to  the 
heirs  at  law. 


94  KENT'S  COMMENTARIES,  [VOL.  n. 

2.  What  is  a  chattel  ?— 342 

Chattel  is  a  very  comprehensive  term  in  our  law,  and  includes  every 
species  of  property,  which  is  not  real  estate,  or  freehold. 

3.  What  is  the  most  leading  division  of  personal  property  1  —  342 
Into  chattels  real,  and  personal. 

4.  What  are  chattels  real  ? — 342 

Chattels  real,  concern  the  reality,  as  a  lease  for  years  of  land  ;  and 
the  duration  of  the  term  of  the  lease  is  immaterial,  provided  it  be  fixed 
and  determinate,  and  there  be  a  reversion  or  remainder  in  fee  in  some 
other  person. 

5.  How  is  property  in  chattels  personal,  divided  ? — 347 
Into  absolute  and  qualified. 

6.  What  does  absolute  property  in  a  thing  denote  ? — 347 

Full  and  absolute  dominion  over  it.  Qualified  property  denotes  a 
special  interest,  liable  to  be  totally  divested  on  the  happening  of  some  par- 
ticular event. 

7.  In  what  may  a  qualified  property  subsist  ? — 347 

It  may  subsist  by  reason  of  the  nature  of  the  thing  or  chattel 
possessed,  or  from  the  nature  of  the  title  by  which  it  is  held.  The 
elements  of  air,  light,  and  water,  are  the  subjects  of  qualified  property  by 
occupancy.  Animals  ferae  nature,  so  long  as  they  are  reclaimed  by  the 
art  and  power  of  man,  are  the  subjects  of  qualified  property  ;  but  when 
they  return  to  their  natural  liberty  and  ferocity,  without  the  animus  rever- 
tendi,  the  property  in  them  ceases.  A  qualified  property  in  goods  subsists 
by  reason  of  the  title,  when  they  are  bailed,  pledged,  or  distrained.  Per- 
sonal property  may  be  held  by  two  or  more  persons  in  joint  tenancy,  or  in 
common ;  and,  in  the  former  case,  the  same  principle  of  survivorship  ap- 
plies which  exists  in  the  case  of  a  joint  tenancy  in  lands. 

8.  What  are  things  in  action  ? — 351 

They  are  personal  rights  not  reduced  to  possession,  but  recoverable 
by  suit  at  law.  Money  due  on  bond,  note,  or  other  contract,  damages  due  for 
breach  of  covenant,  for  the  detention  of  chattels,  or  for  torts,  are  included 
under  this  general  head  or  title  to  things  in  action. 

9.  May  chattels  be  limited  over  by  way  of  remainder  after  a  life  inter- 
est in  thenrns  created  ? — 352 

Yes  ;  but  not  after  a  gift  of  the  absolute  property.  The  limitation 
may  be  either  by  will  or  deed. 


LEC.    XXXVI.]  REDUCED    TO    QUESTIONS   AND    ANSWERS.  95 


LECTURE    XXXVI. 

OF  TITLE  TO  PERSONAL  PROPERTY,  BY  ORIGINAL 
ACQUISITION. 

1.  What  is  the  modern  rule  as  to  the  original  acquisition  of  goods  by 
occupancy  ?  —  356 

The  title  by  occupancy  is  becoming  almost  extinct,  under  civilized 
governments,  and  it  is  permitted  to  exist  only  in  those  few  special  cases, 
in  which  it  may  be  consistent  with  public  welfare.  Such  as  in  case  of 
goods  casually  lost  by  the  owner,  and  unreclaimed  or  designedly  abandoned 
by  him. 

2.  What  is   the  rule   as  to  the  acquisition  of  property  by  accession  ? 
—360 

That  property  in  goods  and  chattels  may  be  acquired  by  accession  ; 
and  under  that  head  is  also  included  the  acquisition  of  property  proceeding 
from  the  admixture  or  confusion  of  goods. 

3.  How  is  the  right  of  accession  defined  in  the   French  civil   code  ? 
—360 

It  is  defined  to  be  the  right  to  all  which  one's  own  property  produces, 
whether  that  property  be  moveable  or  immoveable,  and  the  right  to  that 
which  is  united  to  it  by  accession,  either  naturally  or  artificially.  The 
fruits  of  the  earth,  produced  naturally,  or  by  human  industry,  the  increase 
of  animals,  and  the  new  species  of  articles  made  by  one  person  out  of 
the  materials  of  another,  are  all  embraced  in  this  definition  ;  as  if  a  person 
hires  for  a  limited  period,  a  flock  of  sheep,  or  cattle,  of  the  owner,  the  in- 
crease of  the  flock,  during  the  term,  belongs  to  the  usufructuary,  who  is 
regarded  as  the  temporary  owner.  The  Roman  law  made  a  distinction  as 
to  the  offspring  of  slaves,  and  so  does  the  civil  code  of  Louisiana. 

4.  What  is  the  rule  in  the  case  of  the  confusion  of  goods?  — 364 

With  respect  to  the  case  where  goods  of  two  persons  are  so  inter- 
mixed that  they  can  no  longer  be  distinguished,  each  of  them  has  an  equal 
interest  in  the  subject  as  tenants  in  common,  if  the  intermixture  was  by 
consent.  But  if  it  was  wilfully  made  without  mutual  consent,  then  the  civil 
law  gave  the  whole  to  him  who  made  the  confusion,  and  compelled  him 
to  make  satisfaction  in  damages  to  the  other  party  for  what  he  had  lost.  The 
common  law,  gave  the  entire  property,  without  any  account,  to  him  whose 
property  was  originally  invaded,  and  its  distinct  character  destroyed.  But 
this  rule  is  carried  no  further  than  necessity  requires.  It  is  for  the  party 
guilty  of  the  fraud  to  distinguish  his  property  satisfactorily. 


96  KENT'S  COMMENTARIES,  [VOL.  n. 

5.  "\Yhaldescription  of  property  is  acquired  by  intellectual  labour  ?— 365 

Literary  property,  such  as  maps,  charts,  writings,  and  books  ;  and 
mechanical  inventions,  consisting  of  useful  machines  or  discoveries,  pro- 
duced by  the  joint  result  of  intellectual  and  manual  labour. 

6. .  What  provisions  have  congress  made  in  relation  to  patent  rights  for 
inventions  ?  — 366 

That  any  person,  being  a  citizen  of  the  United  States,  and  any  alien, 
who,  at  the  time  of  his  application,  shall  be  a  resident  of  the  United 
States,  and  who  hath  invented  any  new  and  useful  art,  machine  or  manu- 
facture, or  composition  of  matter,  or  any  new  and  useful  improvement  on 
the  same,  not  known  or  used  before  the  application,  may  apply  to  the  se- 
cretary of  state,  for  a  patent,  for  the  exclusive  right  of  making,  construct- 
ing, using,  and  vending,  for  fourteen  years,  his  invention  or  discovery. 
The  applicant  must  make  oath,  or  affirmation,  that  he  believes  he  is  the 
true  inventor  or  discoverer  of  the  art,  machine,  or  improvement ;  and  must 
give  a  written  description  of  his  invention,  and  of  the  manner  of  using  it, 
or  of  the  process  of  compounding  the  same,  in  full,  clear,  and  intelligible 
terms  ;  and  accompany  it  with  drawings,  and  references,  and  specimens, 
and  models,  according  to  the  nature  of  the  case  ;  and  cause  the  same  to 
be  attested  and  filed  in  the  secretary's  office.  The  legal  representatives 
and  devisees  of  a  person  entitled  to  a  patent,  and  who  dies  before  it  is  ob- 
tained, may  procure  it. 

7.  What  is  provided  in  relation  to  the  copy-rights  of  authors  ?— 273^ 

That  the  authors  of  books,  maps,  charts,  and  musical  compositions, 
and  the  inventors  and  designers  of  prints,  cuts,  and  engravings,  being 
citizens  of  the  United  States,  or  residents  therein,  are  entitled  to  the  ex- 
clusive right  of  printing,  reprinting,  publishing,  and  vending  them,  for  the 
term  of  twenty-eight  years,  from  the  time  of  recording  the  title  thereof; 
and  if  the  author,  inventor,  or  designer,  or  any  of  them,  where  the  work 
was  originally  composed  and  made  by  more  than  one  person,  be  living, 
and  a  citizen  of  the  United  States,  or  resident  therein,  at  the  end  of  the. 
term,  or,  being  dead,  shall  have  left  a  widow,  or  child  or  children,  either  or 
all  of  them  living,  she  or  they  are  entitled  to  the  same  exclusive  right  for 
the  further  term  of  fourteen  years,  on  complying  with  the  terms  prescribed 
by  the  act  of  congress.  Those  terms  are,  that  the  author  or  proprietor, 
before  publication,  deposit  a  printed  copy  of  the  title  of  the  book,  map, 
chart,  musical  composition,  print,  cut,  or  engraving,  in  the  clerk's  office  of 
the  district  wherein  he  resides,  and  which  copy  is  to  be  recorded  ;  and  that 
he  cause  to  be  inserted  on  the  title-page,  or  the  next  following,  of  each 
and  every  edition  of  the  book,  and  cause  to  be  impressed  on  the  face  of 
the  map,  chart,  musical  composition,  print,  cut,  or  engraving,  or  upon  the 
title  or  frontispiece  of  a  volume  of  the  same,  the  following  words,  "  En- 
tered according  to  the  act  of  congress,  in  the  year ,  by  A.  B.,  in  the 

clerk's  office  of  the  district  court  of ,"  (as  the  case  may  be.)     He  is 

then,  within  three  months  after  publishing  the  book  or  other  work  as  afore- 
said, to  cause  to  be  delivered  a  copy  of  the  same  to  the  clerk  of  the  said 


LEC.  XXXVII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  97 

district  court,  who  is  once  in  every  year  to  transmit  a  certified  list  of  all 
such  records  of  copy-right,  and  the  several  books  or  other  works  deposited 
as  aforesaid,  to  the  secretary  of  state,  to  be  preserved  in  his  office.  The 
violation  of  the  copy-right  thus  duly  secured,  is  guarded  against  by  ade- 
quate penalties  and  forfeitures. 

On  the  renewal  of  the  copy-right,  the  title  of  the  work  must  be 
recorded,  and  a  copy  of  the  work  delivered  to  the  clerk  of  the  district, 
and  the  entry  of  the  record  noticed  as  aforesaid  at  the  beginning  of  the 
work  ;  and  all  these  regulations  must  be  complied  with,  within  six  months 
before  the  expiration  of  the  first  term.  And  in  addition  to  these  regula- 
tions, the  author  or  proprietor,  must,  within  two  months  from  the  date  of 
the  renewal,  cause  a  copy  of  the  record  thereof  to  be  published  in  one  or 
more  of  the  public  newspapers  in  the  United  States,  for  the  space  of 
four  weeks. 


LECTURE    XXXVII. 

OF  TITLE  TO  PERSONAL  PROPERTY  BY  TRANSFER 
BY  ACT  OF  LAW. 

1.  In  what  cases  may  goods  and  chattels  change  owners  by  act  of  law  T 
—385 

In  cases  of  forfeiture,  succession,  marriage,  judgment,  insolvency,  and 
intestacy. 

2.  In  what  case  does  the  right  to  property  by  forfeiture,  take  place  in 
this  country  ? — 385 

In  New  York  it  is  confined  to  the  case  of  treason  ;  and  in  that  case 
continues  only  during  the  life  of  the  person  convicted,  and  the  rights  of 
third  persons,  existing  at  the  time  of  the  commission  of  the  treason,  are 
saved.  The  right,  so  far  as  it  exists  in  this  country,  depends  probably, 
upon  local  statute  law ;  and  the  tendency  of  public  opinion  has  been  to 
condemn  forfeiture  of  property,  at  least  in  cases  of  felony.  Forfeiture  of 
estate  and  corruption  of  blood,  under  the  laws  of  the  United  States,  and 
including  cases  of  treason,  are  abolished. 

3.  In  what  case  may  title  to  property  be  acquired  by  judgment  ? — 387 

In  case  of  recovery  by  law,  in  an  action  of  trespass  or  trover  of  the 
ralue  of  a  specific  chattel,  of  which  the  possession  has  been  acquired  by 
tort,  the  title  to  the  goods  is  altered  by  the  recovery,  and  is  transferred  to 
the  defendant. 
13 


98  •      KENT'S  COMMENTARIES,  [VOL.  n. 

4.  What  is  the  rule  as  to  the  acquisition  of  title  by  bankruptcy  or  in- 
solvency ? — 390 

That  the  bankrupt's  estate,  as  soon  as  an  act  of  bankruptcy  com- 
mitted, becomes  a  common  fund  for  the  payment  of  his  debts,  and  he  loses 
the  character  and  power  of  a  proprietor  over  it. 

5.  What  has  the  constitution  of  the  United  States  prescribed  in  relation 
to  bankruptcies  ? — 390 

It  has  given  to  congress  the  power  to  establish  uniform  laws  on  the 
subject  of  bankruptcies  throughout  the  United  States.  States  may  enact 
insolvent  laws,  provided  they  do  not  impair  the  obligation  of  contracts,  nor 
effect  the  rights  of  the  citizens  of  other  states. 

6.  In  what  case  is  title  to  property  acquired  by  intestacy  ? — 403 

When  a  person  dies,  leaving  personal  property  undisposed  of  by  will, 
and  in  that  case,  the  personal  estate,  after  the  debts  are  paid,  is  distributed 
to  the  widow,  and  among  the  next  of  kin. 

7.  What  is  the  rule  of  distribution  of  personal  estate  ? — 420 

That  after  the  debts  are  paid,  a  just  and  equal  distribution  of  what 
remaineth  clear,  of  the  goods  and  personal  estate  of  the  intestate,  shall 
be  made  amongst  the  wife  and  children  or  children's  children,  if  any  there 
be  ;  or  otherwise  to  the  next  of  kin  to  the  intestate,  in  equal  degree,  or 
legally  representing  their  stocks  ;  that  is  to  say,  one-third  part  of  the  sur- 
plusage to  the  wife  of  the  intestate,  and  all  the  residue  by  equal  portions, 
to  and  amongst  the  children  of  the  intestate,  and  their  representatives,  if 
any  of  the  children  be  dead,  other  than  such  child  or  children  who  have 
any  estate  by  settlement,  or  shall  be  advanced  by  the  intestate  in  his  life- 
time, by  portion  equal  to  the  share  which  shall  by  such  distribution  be 
allotted  to  the  other  children  to  whom  such  distribution  is  to  be  made.  And 
if  the  portion  of  any  child  who  hath  had  such  settlement  or  portion,  be  not 
equal  to  the  share  due  to  the  other  children  by  the  distribution,  the  child  so 
advanced  is  to  be  made  equal  with  the  rest.  If  there  be  no  children,  or 
their  representatives,  one  moiety  of  the  personal  estate  of  the  intestate, 
goes  to  the  widow,  and  the  residue  is  to  be  distributed  equally  among  the 
next  of  kin. 

7.  How  are  the  next  of  kin  determined? — 422 

By  the  rule  of  the  civil  law  ;  and  under  that  rule  the  father  stands  in 
the  first  degree,  and  the  grandfather  and  the  grandson  in  the  second ;  and 
in  the  collateral  line,  the  computation  is  from  the  intestate  up  to  the  com- 
mon ancestor  of  the  intestate,  and  the  person  whose  relationship  is  sought 
after,  and  then  down  to  that  person.  The  distribution  of  personal  property, 
of  intestates,  in  these  United  States,  has  undergone  considerable  modifi- 
cation. In  many  of  them,  the  English  statute  of  distribution,  as  to  per- 
sonal property,  is  pretty  closely  followed.  In  a  majority  of  the  states,  the 


LEG.  XXXVIII.]        REDUCED  TO  QUESTIONS  AND  ANSWERS.  99 

descent  of  real  and  personal  property  is  to  the  same  persons  and  in  the 
same  proportions,  and  the  regulation  is  the  same  in  substance,  as  the  En- 
glish statute  of  distributions,  with  the  exception  of  the  widow,  as  to  the 
real  estate,  who  takes  one-third  for  life  only,  as  dower. 

8.  What  is  the  rule  where  the  place  of  the  domicil  of  the  intestate,  and 
the  place  of  the  situation  of  the  property  is  different  ?  — 429 

That  the  disposition,  succession  to,  and  the  distribution  of  personal 
property,  wherever  situated,  is  governed  by  the  law  of  the  country  of  the 
owner's  or  intestate's  domicil. 


LECTURE    XXXVIII. 
OF  TITLE  TO  PERSONAL  PROPERTY  BY  GIFT. 

1.  What  two  kinds  of  gifts  are  there  ?— 438 

1.  Gifts,  simply  so  called,  or  gifts  inter  vivos.  2.  Gifts  causa  mortis, 
or  those  made  in  apprehension  of  death.  Gifts  inter  vivos  have  no  refer- 
ence to  the  future,  and  go  into  immediate  and  absolute  effect.  Delivery 
is  essential,  both  at  law  and  in  equity,  to  the  validity  of  a  parol  gift 
of  a  chattel  ;  and  it  is  the  same  whether  it  be  a  gift  inter  vivos,  or  causa 
mortis.  The  subject  of  the  gift  must  be  certain,  and  there  must  be  the 
mutual  consent  or  concurrent  will  of  both  parties. 

2.  How  do  gifts  affect  creditors  ?  — 440 

They  do  not  affect  the  rights  of  creditors,  as  gifts  of  goods  and  chat- 
tels, as  well  as  of  lands,  by  writing  or  otherwise,  made  with  intent  to  delay, 
hinder  and  defraud  creditors,  are  void,  as  against  the  person  to  whom  such 
fraud  would  be  prejudicial. 

3-  What  is  the  rule  as  to  the  revocation  of  gifts  ? — 444 

That  gifts  inter  vivos,  are  irrevocable,  but  that  gifts  causa  mortis,  are 
conditional  and  revocable. 


100  KENT'S  COMMENTARIES,  [VOL.  n. 

LECTURE    XXXIX. 
OF  CONTRACTS. 

1.  What  is  an  executory  contract?— 449 

It  is  an  agreement  of  two  or  more  persons,  upon  a  sufficient  consider- 
ation, to  do  or  not  to  do  a  particular  thing. 

2.  Into  what  classes  are  contracts  divided  ? — 450 

Into  contracts  under  seal  and  not  under  seal.  If  under  seal,  it  is  de- 
nominated a  specialty,  and  if  not  under  seal,  an  agreement  by  parol ;  and 
the  latter  includes  equally  verbal  and  written  contracts  not  under  seal. 
The  agreement  conveys  an  interest  either  in  possession  or  in  action. 

3.  What  is  the  distinction  between  a  ^contract  executed  and  a  contract 
executory  ? — 450 

It  is  this,  as  if,  for  instance,  one  person  sells  and  delivers  goods  to 
another  for  a  price  paid,  the  agreement  is  executed,  and  becomes  complete 
and  absolute ;  but  if  the  vendor  agrees  to  sell  and  deliver  at  a  future  time, 
and  for  a  stipulated  price,  and  the  other  party  agrees  to  accept  and  pay, 
the  contract  is  executory,  and  rests  in  action  merely.  There  are  also  ex- 
press and  implied  contracts.  The  former  exist  when  the  parties  contract 
in  express  words,  or  by  writing  ;  and  the  latter  are  those  contracts  which 
the  law  raises. 

4.  What  qualifications  of  the  parties  are  essential,  to  render  a  contract 
valid?— 450 

That  they  have  sufficient  understanding,  and  age,  and  freedom  of  will, 
and  of  the  exercise  of  it,  for  the  given  case. 

5.  What  is  the  rule  as  regards  lunatics  ? — 450 

The  contracts  of  lunatics  are  generally  void,  from  the  period  at  which 
the  inquisition  finds  the  lunacy  to  have  commenced.  But  the  inquisition 
is  not  conclusive  evidence  of  the  fact ;  and  the  party  affected  by  the  allega- 
tion of  lunacy  may  gainsay  it  by  proof,  without  first  traversing  the  inqui- 
sition. The  general  rule  is,  that  sanity  is  to  be  presumed  until  the  con- 
trary be  proved  ;  and  when  an  act  is  sought  to  be  avoided,  on  the  ground 
of  mental  imbecility,  the  proof  of  the  fact  lies  upon  the  person  who  alle- 
ges it. 

6.  How  may  intoxication  affect  a  contract  ? — 252 

It  has  been  decided,  that  an  obligation,  executed  by  a  man  when  de- 
prived of  the  exercise  of  his  understanding  by  intoxication,  was  voidable 


LEC.  XXXIX.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  101 

by  himself,  though  the  intoxication  was  voluntary,  and  not  procured  through 
the  circumvention  of  the  other  party. 

7.  What  is  the  rule  as  to  a  general  imbecility  of  mind?— 452 

That  imbecilty  of  mind  is  not  sufficient  to  set  aside  a  contract,  when 
there  is  not  an  essential  privation  of  the  reasoning  faculties,  or  an  incapa- 
city of  understanding  and  acting  in  the  ordinary  affairs  of  life.  This  in- 
capacity is  now  the  test  of  that  unsoundness  of  mind  which  will  avoid  a 
deed  at  law.  Weakness  of  understanding  may,  however,  be  a  material  ; 
circumstance  in  establishing  an  inference  of  unfair  practice  or  imposition, 
and  it  would  naturally  awaken  the  attention  of  a  court  of  justice  to  every 
unfavourable  appearance  in  the  case.  Nor  is  a  person  born  deaf  and  dumb 
deemed  absolutely  non  compos  mentis,  though  by  some  of  the  ancient  au- 
thorities he  was  deemed  incompetent  to  contract. 

8.  How  are  contracts  made  abroad,  to  be  construed  in  the  courts  of  jus- 
tice in  this  country  ? — 454 

The  rule  is,  that  a  contract,  valid  by  the  law  of  the  place  where  it 
was  made,  is  valid  everywhere.  The  lex  loci  contractus  controls  the  na- 
ture, construction,  and  validity  of  the  contract.  The  doctrine  of  the  lex 
loci  is  replete  with  subtle  distinctions  and  embarrassing  questions,  which 
have  exercised  the  skill  and  learning  of  the  earlier  and  most  distinguished 
civilians  of  the  Italian,  French,  Dutch  and  German  schools,  in  their  dis- 
cussions on  highly  important  topics  of  international  law.  These  topics  were 
almost  unknown  in  the  English  courts,  prior  to  the  time  of  Lord  Hard- 
wicke  and  Lord  Mansfield ;  and  the  English  lawyers  seem  generally  to 
have  been  strangers  to  the  discussions  on  foreign  law  by  the  celebrated 
jurists  of  continental  Europe.  In  the  works  of  the  civilians,  the  appli- 
cation of  the  lex  loci  on  the  one  hand,  and  the  lex  fori  or  rei  sitae  on  the 
other,  is  made  to  depend  on  the  distinction  between  real  and  personal  stat- 
utes. A  personal  statute  is  a  law,  ordinance,  regulation  or  custom,  the  dis- 
position of  which  effects  the  person,  and  clothes  him  with  capacity  or  in- 
capacity, which  he  does  not  change  with  every  change  of  abode  ;  but 
which,  upon  principles  of  justice  and  policy,  he  is  assumed  to  carry  with 
him  wherever  he  goes.  Real  statutes  affect  things  as  used  in  contradis- 
tinction to  persons  ;  and  their  operation  is  necessarily  confined  within 
territorial  limits,  or  ad  locum  rci  citce.  Merlin  gives  the  following  distinc- 
tion :  that  the  laws  which  regulate  the  condition,  capacity  or  incapacity 
of  persons,  are  personal  statutes  ;  and  those  which  regulate  the  quality, 
transmission,  and  disposition  of  property,  are  real  statutes.  The  doctrine 
in  question  maybe  considered,  1.  In  its  application  to  the  obligation  and 
construction  of  contracts  ;  2.  In  its  application  to  the  remedy.  1.  There 
is  no  doubt  of  the  truth  of  the  general  proposition,  that  the  laws  of  a 
country  have  no  binding  force  beyond  its  territorial  limits  ;  and  their  au- 
thority is  admitted  in  other  states,  not  ex  proprio  vigore,  but  ex  comitate. 
Every  independent  community  will  judge  for  itself,  how  far  the  comitas 
inter  communitates  is  to  be  permitted  to  interfere  with  its  domestic  interests 
and  policy.  There  are,  however,  certain  general  rules  in  respect  to  the 


102  KENT'S  COMMENTARIES,  [VOL.  u. 

admission  of  the  lex  loci  contractus,  to  which  we  may  confidently  appeal,  as 
being  of  commanding  influence  in  the  consideration  of  the  subject.  Thus, 
it  may  be  laid  down  as  the  settled  doctrine  of  public  law,  that  personal 
contracts  are  to  have  the  same  validity,  interpretation,  and  obligatory  force 
in  every  other  country,  which  they  have  in  the  country  where  they  were 
made.  The  interpretation  of  the  contract  is  to  be  governed  by  the  law  of 
the  country  where  the  contract  was  made  ;  but  the  mode  of  suing,  and  the 
time  of  suing,  must  be  governed  by  the  law  of  the  country  where  the  ac- 
tion is  brought.  Remedies  upon  contracts  and  their  incidents  are  regula- 
ted and  pursued  according  to  the  law  of  the  place  where  the  action  is  in- 
stituted, and  the  lex  loci  has  no  application. 

9.  What  is  a  nudvm  pactum  ? — 463 

It  is  a  contract  without  a  consideration  and  not  binding  in  law,  though 
it  may  be  in  point  of  conscience  ;  and  this  maxim  of  the  common  law,  was 
taken  from  the  civil  law,  in  which  the  doctrine  of  consideration  is  treated 
with  an  air  of  scholastic  subtlety.  Whether  the  agreement  be  verbal  or  in 
writing,  it  is  still  a  nude  pact,  and  will  not  support  an  action,  if  a  consid- 
eration be  wanting.  The  rule,  that  a  consideration  is  necessary  to  the 
validity  of  a  contract,  applies  to  all  contracts  not  under  seal,  with  the  ex- 
ception of  bills  of  exchange  and  negotiable  notes,  after  they  have  been 
negotiated  and  passed  into  the  hands  of  an  innocent  endorsee. 

10.  What  is  a  valuable  consideration  ?— 465 

It  is  one  that  is  either  a  benefit  to  the  party  promising,  or  some  trou- 
ble or  prejudice  to  the  party  to  whom  the  promise  is  made.  Any  damage, 
or  suspension,  or  forbearance  of  right,  will  be  suflicient  to  sustain  the 
promise.  A  mutual  promise  amounts  to  a  sufficient  consideration,  provi- 
ded the  mutual  promises  be  concurrent  in  point  of  time ;  and  in  that  case 
the  one  promise  is  a  good  consideration  for  the  other.  But  if  two  concur- 
rent acts  are  stipulated,  as  delivery  by  one  party,  and  payment  by  the  other, 
no  action  can  be  maintained  by  either,  without  showing  a  performance,  or 
what  is  equivalent  to  a  performance,  of  his  part  of  the  agreement.  If  the 
consideration  be  wholly  past,  and  executed  before  the  promise  be  made,  it 
is  not  sufficient,  unless  the  consideration  arose  at  the  instance  or  request  of 
the  party  promising  ;  and  the  consideration  must  have  been  beneficial  to  one 
or  the  other.  The  consideration  must  not  only  be  valuable,  but  it  must  be 
lawful,  and  not  repugnant  to  law,  or  sound  policy,  or  good  morals. 

11.  What  is  a  sale? — 468 

It  is  a  contract  for  the  transfer  of  property  from  one  person  to  another, 
fora  valuable  consideration,  and  three  things  are  requisite  to  its  validity, 
viz.  the  thing  sold,  which  is  the  object  of  the  contract,  the  price,  and  the 
consent  of  the  contracting  parties. 

12.  What  is  the  rule  in  every  sale  of  a  chattel,  if  the  possession  be  in 
another,  and  there  be  no  covenant  or  warranty  of  title  ? — 478 

The  rule  of  caveat  emptor  applies,  and  the  party  buys  at  his  peril. 


LEG.  XXXIX.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  103 

But  if  the  seller  has  possession  of  the  article,  and  he  sells  it  as  his 
own,  and  not  as  the  agent  for  another,  and  for  a  fair  price,  he  is  understood 
to  warrant  the  title. 

13.  Is  the  seller  bound  to  answer  for  the  quality  or  goodness  of  the  thing 
sold  ?— 478 

He  is  not,  except  under  special  circumstances,  unless  he  expressly 
warranted  the  goods  to  be  sound  and  good,  or  unless  he  hath  made  a  frau- 
dulent representation,  or  used  some  fraudulent  concealment  concerning 
them,  and  which  amounts  to  a  warranty  in  law. 

14.  Is  a  mere  false  assertion  of  value  where  no  warranty  is  intended, 
ground  of  relief  to  a  purchaser  ? — 485 

It  is  not ;  because  the  assertion  is  a  matter  of  opinion,  which  does 
not  imply  knowledge,  and  in  which  men  may  differ.  Every  person  repo- 
ses at  his  peril  on  the  opinion  of  others,  when  he  has  an  equal  opportunity 
to  form  and  exercise  his  own  judgment.  An  action  will  lie  against  a  per- 
son not  interested  in  the  property,  for  making  a  false  and  fraudulent  repre- 
sentation to  the  seller,  whereby  he  sustained  damage  by  trusting  the  pur- 
chaser, on  the  credit  of  such  misrepresentations. 

15.  When  does  the  contract  of  sale  become  absolute  ? — 491 

When  the  terms  of  the  sale  are  agreed  on,  and  the  bargain  is  struck, 
and  every  thing  that  the  seller  has  to  do  with  the  goods  is  complete,  with- 
out actual  payment  or  delivery,  and  the  property  and  the  risk  of  accident 
to  the  goods,  vest  in  the  buyer.  He  is  entitled  to  the  goods  on  payment 
or  tender  of  the  price,  and  not  otherwise,  when  nothing  is  said  at  the  sale 
as  to  the  time  of  delivery  or  payment.  The  payment  or  tender  of  the 
price,  is,  in  such  cases,  a  condition  precedent  implied  in  the  contract  of 
sale. 

16.  What  if  the  purchaser  becomes  insolvent  before  the  goods  are  de- 
livered ?— 493 

The  seller  may  retain  them,  even  if  they  were  sold  upon  credit,  or  if 
he  dispatched  the  goods  to  the  buyer,  and  insolvency  occurs,  he  has  a 
right  in  virtue  of  his  original  ownership,  to  stop  them  in  transtu. 

17.  What  is  necessary  in  the  first  instance,  to  make  the  contract  of  sale 
valid?— 493 

That  there  must  be  a  delivery  or  tender  of  it,  or  payment,  or  tender 
of  payment,  or  earnest  given,  or  a  memorandum  in  writing,  signed  by  the 
party  to  be  charged ;  and  if  nothing  of  this  kind  takes  place,  it  is  no  con- 
tract, and  the  owner  may  dispose  of  the  goods  as  he  pleases. 

18.  What  is  the  rule  as  to  what  amounts  to  a  delivery  of  the  goods,  so 
as  to  vest  the  entire  property  in  the'vendee,  without  payment? — 494 


104  KENT'S  COMMENTARIES,  [VOL.  n 

If  every  thing  to  be  done  on  the  part  of  the  vendor  be  completed,  a 
delivery  of  part  of  a  cargo  or  lot  of  goods,  has,  under  certain  circumstan- 
ces, been  considered  a  delivery  of  the  whole,  so  as  to  vest  the  property. 
To  constitute  a  part  acceptance,  so  as  to  take  the  case  out  of  the  statute, 
there  must  have  been  such  a  dealing  on  the  part  of  the  purchaser,  as  to 
deprive  him  of  the  right  to  object  to  the  quantity  of  the  goods,  or  to  deprive 
the  seller  of  his  lien. 

19.  Can  the  vendee  take  the  goods  without  payment,  even  if  an  earnest 
has  been  given  ? — 475 

He  cannot. 

20.  In  what  cases  is  a  symbolical  delivery  sufficient  to  pass  the  pro- 
perty ? — 500 

The  delivery  of  the  key  of  the  warehouse  in  which  goods  sold  are 
deposited,  or  transferring  them  on  the  warehouse-man  or  wharfinger's 
books  to  the  name  of  the  buyer,  is  a  delivery,  sufficient  to  transfer  the 
property.  So,  the  delivery  of  the  receipt  of  the  storekeeper  for  the  goods, 
being  the  documentary  evidence  of  the  title,  has  been  held  to  be  construc- 
tive delivery  of  the  goods.  There  may  be  a  symbolical  delivery  when 
the  thing  does  not  admit  of  an  actual  delivery.  The  delivery  must  always 
be  according  to  the  subject  matter  of  the  delivery,  and  the  property  must 
be  placed  under  the  control  and  power  of  the  vendee. 

21.  What  has  the  statute  of  frauds  provided  in  relation  to  certain  con- 
tracts therein  mentioned  ? — 510 

That  no  action  should  be  brought  to  charge  any  executor  or  adminis- 
trator, upon  any  special  promise,  to  answer  damages  out  of  his'own  estate  ; 
or  to  charge  the  defendant  upon  any  special  promise,  to  answer  for  the 
debt,  default  or  miscarriage  of  another  person  ;  or  to  charge  any  person, 
upon  any  agreement,  made  upon  consideration  of  marriage,  or  upon  any 
agreement  that  was  not  to  be  performed  in  one  year,  unless  there  was  some 
memorandum,  or  note  in  writing  of  the  agreement,  signed  by  the  party  to 
be  charged,  or  his  agent.  The  statute,  in  respect  to  the  memorandum, 
applied  also  to  contracts  for  the  sale  of  goods,  wares,  and  merchandizes, 
in  cases  where  there  was  no  delivery  and  acceptance  of  part,  or  payment 
in  part,  or  something  earnest  given.  The  signing  of  the  agreement  by  one 
party,  is  sufficient,  provided  he  is  the  party  sought  to  be  charged.  It  is 
sufficient,  likewise,  if  the  note  or  memorandum  be  made  by  a  broker  em- 
ployed to  effect  the  purchase ;  and  the  instrument  is  liberally  construed 
without  a  scrupulous  regard  to  forms.  The  signature  may  be  made  with 
•a  lead  pencil,  according  to  the  practice  in  hurried  business. 

22.  What  are  the  principal  rights  and  obligations  of  auctioneers  ? — 536 

An  auctioneer  has  not  only  the  possession  of  the  goods  which  he  is 
employed  to  sell,  but  he  has  an  interest  coupled  with  that  possession. 
He  has  a  special  property  in  the  goods,  and  a  lien  upon  them  for  the  char- 


LEG.  XXXIX.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  105 

ges  of  the  sale,  and  his  commission,  and  the  auction  duty.  He  may  sue 
the  buyer  for  the  purchase  money,  and  if  he  gives  credit  to  the  vendee, 
and  makes  delivery  without  payment,  it  is  at  his  own  risk.  If  the  auc- 
tioneer has  notice  that  the  property  he  is  about  to  sell  does  not  belong  to 
his  principal,  and  he  sells  notwithstanding  the  notice,  he  will  be  held  re- 
sponsible to  the  owner  for  the  amount  of  the  sale.  So,  if  the  auctioneer 
does  not  disclose  the  name  of  his  principal  at  the  time  of  the  sale,  the 
purchaser  is  entitled  to  look  to  him  personally,  for  the  completion  of  the 
contract,  and  for  damages  for  its  non-performance. 

23.  How  are  auction  sales  considered  in  regard  to  the  statute  of  frauds  ? 
—539 

The  auctioneer  is  regarded  as  the  agent  of  both  parties,  and  lawfully 
authorized  by  the  purchaser,  either  of  lands  or  goods,  to  sign  the  contract 
of  sale  for  him  as  the  highest  bidder.  The  writing  his  name  as  the  high- 
est bidder  in  the  memorandum  book  of  the  sale  by  the  auctioneer,  imme- 
diately on  receiving  his  bid,  and  knocking  down  the  hammer,  is  a  sufficient 
signing  of  the  contract  within  the  statute,  so  as  to  bind  the  purchaser. 

24.  What  is  meant  by  "the  right  of  stoppage  in  transitu  ?" — 540 

It  is  the  right  which  the  vendor,  when  he  sells  goods  to  another  on 
credit,  has  of  resuming  the  possession  of  the  goods,  while  they  are  in  the 
hands  of  a  carrier  or  middle-man,  in  their  transit  to  the  consignee  or  ven- 
dee, and  before  they  arrive  into  his  actual  possession,  or  to  the  destination 
which  he  has  appointed  for  them,  on  his  becoming  bankrupt,  or  insolvent. 
The  right  exists  only  as  between  the  vendor  and  vendee.  If  the  price  be 
paid,  the  vendor  cannot  stop  or  detain  goods  for  money  due  on  other  ac- 
counts. The  right  of  stoppage  does  not  proceed  upon  the  ground  of  re- 
scinding the  contract,  but  as  a  case  of  equitable  lien.  It  assumes  its 
existence  and  continuance  ;  and,  as  a  consequence  of  that  principle,  the 
vendee  or  his  assignees,  may  recover  the  goods,  on  payment  of  the  price  ; 
and  the  vendor  may  sue  for  and  recover  the  price,  notwithstanding  he  had 
actually  stopt  the  goods  in  transitu,  provided  he  be  ready  to  deliver  them 
upon  payment.  If  he  has  been  paid  in  part,  he  may  stop  the  goods  for 
the  balance  due  him,  and  the  part  payment  only  diminishes  the  lien  pro 
tanto,  on  the  goods  detained. 

25.  What  will  defeat  the  right  ? — 543 

Actual  delivery  to  the  vendee,  or  circumstances  which  are  equivalent 
to  actual  delivery.  There  are  cases  in  which  constructive  delivery  will, 
and  others  in  which  it  will  not,  destroy  the  right.  The  delivery  to  a  car- 
rier or  packer,  to  and  for  the  use  of  the  vendee,  or  to  a  wharfinger,  is  a 
constructive  delivery  to  the  vendee  ;  but  it  is  not  sufficient  to  defeat  this 
right,  even  though  the  carrier  be  appointed  by  the  vendee.  The  delivery 
to  the  master  of  a  general  ship,  or  of  one  chartered  by  the  consignee  is 
a  delivery  to  the  vendee  or  consignee,  but  still  subject  to  this  right  of  stop- 
page. And  yet  if  the  consignee  had  hired  the  ship  for  a  term  of  years, 
14 


106  KENT'S  COMMENTARIES,  [VOL.  n. 

and  the  goods  were  put  on  board  to  be  sent  by  him  on  a  mercantile  adven- 
ture, the  delivery  would  be  absolute.  If  the  delivery  to  a  carrier  or  agent 
of  the  vendee  be  for  the  purpose  of  conveyance  to  the  vendee,  the  right 
of  stoppage  continues,  notwithstanding  such  a  constructive  delivery  to  the 
vendee  ;  but  if  the  goods  be  delivered  to  the  carrier  or  agent  for  safe  cus- 
tody, or  for  disposal  on  the  part  of  the  vendee,  and  the  middle-man  is  by 
agreement  converted  into  a  special  agent  for  the  buyer,  the  transit  or  pas- 
sage of  the  goods  terminates,  and  with  it  the  right  of  stoppage.  So,  a 
complete  delivery  of  part  of  an  entire  parcel  or  cargo,  terminates  the  tran- 
situs,  and  the  vendor  cannot  stop  the  remainder. 

25.  What  are  the  principal  legal  rules  for  the  interpretation  of  contracts? 
—555 

The  mutual  intention  of  the  parties  to  the  instrument,  is  the  great  and 
sometimes  the  difficult  object  of  inquiry,  when  the  terms  of  it  are  not  free 
from  ambiguity.  To  reach  and  carry  that  intention  into  effect,  the  law, 
when  it  becomes  necessary  will  control  even  the  literal  terms  of  the  con- 
tract, if  they  manifestly  contravene  the  purpose.  Plain  aad  unambiguous 
words  need  no  interpretation.  Words  are  to  be  taken  in  their  natural  and 
most  obvious  meaning,  unless  some  good  reason  be  assigned  to  show  that 
they  should  be  understood  in  a  different  sense.  If  the  intention  be  doubt- 
ful, it  is  to  be  sought  after  by  reference  to  the  context,  and  to  the  nature  of 
the  contract.  It  must  be  a  reasonable  construction,  and  according  to  the 
subject  matter,  and  motive.  The  whole  instrument  is  to  be  reviewed  and 
compared  in  all  its  parts,  so  that  every  part  may  be  made  consistent  and 
effectual.  If  it  be  a  mercantile  case,  and  the  instrument  be  not  clear  and 
unequivocal,  the  usage  of  trade  will  enable  us  frequently  to  determine  the 
precise  import  of  the  particular  terms,  and  the  certain  intention  declared 
by  the  use  of  them.  Parol  evidence  is  not  admissible  to  supply  or  con- 
tradict, enlarge  or  vary,  the  words  of  a  written  contract.  Parol  evidence 
is  received,  when  it  goes,  not  to  contradict  the  terms  of  the  writing,  but 
to  defeat  the  whole  contract,  as  being  fraudulent  or  illegal.  Contracts  are 
to  receive  the  sense  in  which  the  person  making  the  promise  believed  the 
other  party  to  have  accepted  it. 


LECTURE    XL. 
OF  BAILMENT. 

1.  How  does  the  commentator  define  bailment  ? — 358 

To  be  a  delivery  of  goods  upon  trust,  upon  a  contract  expressed  or 
implied,  that  the  trust  shall  be  duly  executed,  and  the  goods  restored  by 
the  bailee,  as  soon  as  the  purpose  of  the  bailment  shall  be  answered. 


LEC.  XL.]         REDUCED  TO  QUESTIONS  AND  ANSWERS.  107 

2.  How  many  species  of  bailment  are  there,  according  to  Sir  William 
Jones  ? — 558 

Five  ;  viz.  1.  Depositum,  or  a  naked  deposit  without  reward.  2. 
Mandatum,  or  commission,  which  is  gratuitous,  and  by  which  the  manda- 
tory undertakes  to  do  some  act  about  the  thing  bailed.  3.  Commodatum, 
or  loan  for  use  without  pay,  and  when  the  thing  is  to  be  restored  in 
specie.  4.  A  pledge,  as  when  a  thing  is  bailed  to  a  creditor  as  a  security 
for  debt.  5.  Locatio,  or  hiring  for  reward. 

3.  How  does  Justice  Story  subdivide  the  head  of  Locatio  1 — 591 

Into,  1.  Locatio  operis  faciendi,  or  hire  of  labour  and  services.  2. 
Locatio  custodies,  or  receiving  goods  on  deposit  for  hire. 

4.  What  does  he  include  under  the  head  of  locatio  custodian  ? — 591 

Agisters  of  cattle,  warehouse-men  and  wharfingers,  and  also  forward- 
ing men,  or  merchants.  They  are  all  responsible  for  want  of  good  faith, 
and  of  reasonable  care  and  ordinary  diligence,  and  not  to  any  greater 
extent,  unless  the  business  and  duty  of  carriers  be  attached  to  their  other 
character. 

5.  How  are  inkeepers  considered  in  respect  to  liability  ? — 592 

They  are  held  to  be  responsible  to  as  strict  and  severe  an  extent  as 
common  carriers;  and  the  principle  was  taken  from  the  Roman  law,  and 
adopted  into  modern  jurisprudence.  In  general  an  innkeeper  is  responsi- 
ble for  the  acts  of  his  domestics,  and  for  thefts,  and  is  bound  to  take  all 
possible  care  of  the  goods  and  baggage  of  his  guests  deposited  in  his  house 
or  intrusted  to  the  care  of  his  family  or  servants. 

6.  Who  is  an  inkeeper  within  the  meaning  of  the  law  ? — 596 

One  who  keeps  a  house,  and  holds  out  that  he  will  receive  all  travel- 
lers and  sojourners  who  are  willing  to  pay  a  price  adequate  to  the  sort  of 
entertainment  provided,  and  who  come  in  a  situation  in  which  they  are 
fit  to  be  received.  But  the  keeper  of  a  mere  coffee  house,  or  private 
boarding  or  lodging  house,  is  not  an  inkeeper  in  the  sense  of  the  law. 

7.  What  are  the  principal  rules  governing  the  class  of  bailees  called 
carriers  ? — 597 

That  the  carrier  for  hire  in  a  particular  case,  and  not  exercising  the 
business  of  a  common  carrier,  is  only  answerable  for  ordinary  neglect, 
unless  he  by  express  contract  assumes  the  risk  of  a  common  carrier.  But 
if  he  be  a  common  carrier,  he  is  in  the  nature  of  an  insurer,  and  is  an- 
swerable for  all  accidents  and  thefts,  arid  even  for  a  loss  by  robbery.  He 
is  answerable  for  all  losses  which  do  not  fall  within  the  accepted  cases  of 
the  act  of  God,  or  inevitable  accident,  without  the  intervention  of  man, 
and  public  enemies. 


108  KENT'S  COMMENTARIES,  [VOL.  H. 

8.  Who  are  common  carriers?— 598 

Persons  who  undertake  generally,  and  for  all  persons  indifferently,  to 
convey  goods,  and  deliver  them  at  a  place  appointed,  for  hire,  and  with  or 
without  a  special  agreement  as  to  price. 

9.  Into  what  two  classes  are  they  divided  ? — 598 

Into  inland  carriers  by  land  or  water,  and  carriers  by  sea  ;  and  in  the 
aggregate  are  included  the  owners  of  stages,  waggons,  and  coaches,  who 
carry  goods  as  well  as  passengers  for  hire,  waggoners,  teamsters,  carimen, 
the  masters  and  owners  of  ships,  vessels,  and  all  watercraft,  including 
steam  vessels,  and  steam  tow-boats,  belonging  to  internal  as  well  as 
coasting  and  foreign  navigation,  lightermen  and  ferrymen. 

10.  What  are  the  duties  and  obligations  of  coach  proprietors  ? — 601 

They  do  not  warrant  the  safety  of  passengers  in  the  character  of 
common  carriers,  and  are  not  responsible  for  mere  accidents  to  the  persons 
of  passengers,  but  only  for  the  want  of  due  care.  Slight  fault,  unskillfulness 
or  negligence,  either  as  to  the  competence  of  the  carriage,  or  the  act  of 
driving  it,  may  render  the  owner  responsible  in  damages  for  an  injury  to 
the  passengers ;  they  are  to  be  transported  as  safely  as  human  foresight 
and  care  will  permit.  The  coach  proprietor  is  not  at  liberty  to  turn  away 
passengers,  if  he  has  sufficient  room  and  accommodation.  He  is  bound 
to  provide  competent  vehicles,  suitably  equipped,  and  with  careful  and 
skillful  drivers.  He  is  bound  to  give  all  reasonable  facilities  to  the  recep- 
tion and  comfort  of  the  passengers,  and  to  use  all  precautions,  as  far  as 
human  care  and  foresight  will  go  for  their  safety  on  the  road.  He  is  an- 
swerable for  the  smallest  negligence  in  himself  and  his  servants. 


LECTURE    XLI- 
OF  PRINCIPAL  AND  AGENT. 

1.  On  what  is  agency  founded  ? — 612 

Upon  a  contract,  either  express  or  implied,  by  which  one  of  the  par- 
ties confides  to  the  other  the  management  of  some  business,  to  be  trans- 
acted in  his  name,  or  on  his  account,  and  by  which  the  other  assumes  to 
do  the  business,  and  render  an  account  of  it. 

2.  How  may  the  authority  of  an  agent  be  created  ? — 612 


LEC.  XLI.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  109 

By  deed  or  writing,  or  verbally  without  writing  ;  and  for  the  ordina- 
ry purposes  of  business  and  commerce,  the  latter  is  sufficient. 

3.  May  agency  be  inferred  without  proof  of  any  express  appointment? 
—613 

It  may,  from  the  relation  of  the  parties,  and  the  nature  of  the  em- 
ployment. It  is  sufficient  that  there  be  satisfactory  evidence  of  the  fact 
that  the  principal  employed  the  agent  and  that  the  agent  undertook  the 
trust. 

4.  Can  an  agent  convey  real  estate  under  an  implied  contract  ? — 613 

He  cannot  ;  to  convey  lands  he  must  have  an  appointment  in  writing  ; 
and  where  the  conveyance  is  required  to  be  by  deed,  the  authority  to  the 
attorney  to  execute  it  .must  be  commensurate  in  point  of  solemnity,  and  be 
by  deed  also.  The  agency  must  be  antecedently  given,  or  be  subsequently 
adopted  ;  and  in  the  latter  case,  there  must  be  some  act  of  recognition. 

5.  Is  an  acquiescence  in  the  assumed  agency  of  another,  equivalent  to 
an  express  authority? — 614 

It  is  when  the  acts  of  the  agent  are  brought  home  to  the  knowledge 
of  the  principal.  By  permitting  another  to  hold  himself  out  to  the  world 
as  his  agent,  the  principal  adopts  his  acts,  and  will  be  held  bound  to  the 
person  who  gives  credit  thereafter  to  the  other,  in  the  capacity  of  his  agent. 
When  the  principal  is  informed  of  what  has  been  done,  he  must  dissent, 
and  give  notice  of  it  in  a  reasonable  time ;  and  if  he  does  not,  his  assent 
and  ratification  will  be  presumed. 

6.  What  are  the  rights  of  an  assumed  agent  against  his  principal  ? — 616 

The  Roman  law  would  oblige  a  person  to  indemnify  an  assumed  agent, 
acting  without  authority,  and  without  any  assent  or  acquiescence  given  to 
the  act,  provided  it  was  an  act  necessary  and  useful  at  its  commencement. 
But  the  English  law  has  never  gone  to  that,  extent ;  and  therefore  if  A. 
owes  a  debt  to  B.,  and  C.  chooses  to  pay  it  without  authority,  the  law  will 
not  raise  a  promise  in  A.  to  indemnify  C. ;  for  if  it  were  so,  it  would  be 
in  the  power  of  C.  to  make  A.  his  debtor  nolens  volens. 

7.  What  is  the  English  rule  where  there  is  an  existing  business  rela- 
tion between  the  parties  ? — 617 

That  if  payment  be  made  under  the  pressure  of  a  situation,  in  which 
one  party  was  involved  by  the  other's  breach  of  faith,  it  will  be  binding  on 
the  person  for  whose  use  it  was  made.  A  surety,  from  his  relation  to  the 
principal  debtor,  has  an  interest  and  a  right  to  see  that  the  debt  be  paid  ; 
and  if  he  pays  to  relieve  himself,  it  is  his  money  paid  to  and  for  the  use 
of  the  other. 

8.  What  is  the  rule  as  to  the  duty  of  an  agent  in  the  pursuance  of  his 
authority  ? — 617 


110  KENT'S  COMMENTARIES,  [VOL.  n. 

That,  if  an  agent  be  intrusted  with  general  powers,  he  must  act  with 
sound  discretion,  and  he  has  all  the  implied  powers  within  the  scope  of 
the  employment.  A  power  to  settle  an  account,  implies  the  right  to  allow 
payments  already  made.  If  he  be  an  empowered  agent  for  a  particular 
transaction,  he  is  not  bound  to  go  on  and  do  all  other  things  connected 
with,  or  arising  out  of  the  case.  If  his  powers  are  special,  and  limited, 
he  must  strictly  follow  them. 

9.  What  if  an  agent  do  all  he  is  authorized  to  do,  and  something  more  1 
—618 

It  will  be  good  so  far  as  he  had  a  right  to  go,  and  the  excess  only  will 
be  void.  As  if  A.  authorize  B.  to  buy  an  estate  for  him  at  50  dollars  per 
acre,  and  he  gives  51  dollars  per  acre,  A.  is  not  bound  to  pay  that  price  ; 
but  the  better  opinion  is,  that  if  B.  offers  to  pay  the  excess  out  of  his  own 
pocket,  A.  is  then  bound  to  take  the  estate.  This  case  is  stated  in  the 
civil  law,  and  the  most  equitable  conclusion  among  the  civilians  is,  that 
A.  is  bound  to  take  the  estate  at  the  price  he  prescribed.  Majori  summa 
minor  inest.  But  a  distinction  is  to  be  made  according  to  the  nature  of  the 
subject.  If  a  power  be  given  to  buy  a  house,  with  an  adjoining  wharf  and 
store,  and  the  agent  buys  the  house  only,  the  principal  would  not  be  bound 
to  take  the  house,  for  the  inducement  to  the  purchase  has  failed.  So,  if 
he  be  instructed  to  purchase  the  fee  of  a  certain  farm,  and  he  purchase  an 
interest  for  life  or  years  only,  or  he  purchases  only  the  undivided  right  of 
a  tenant  in  common  in  the  farm  ;  in  these  cases  the  principal  ought  not  to 
be  bound  to  take  such  a  limited  interest,  because  his  object  was  defeated. 
Whether  the  principal  would,  or  would  not  be  bound  by  an  act,  executed 
in  part  only,  depends  in  a  measure  upon  the  nature  and  object  of  the 
purchase. 

10.  What  if  an  agent  has  power  to  lease  for  21  years,  and  he  leases  for 
26  years?— 619 

The  lease,  in  equity,  would  be  void  only  for  the  excess,  because  the 
line  of  distinction  between  the  good  execution  of  the  power,  and  the  ex- 
cess, can  be  easily  made.  But,  at  law,  even  such  a  lease  would  not  be 
good  pro  tanto,  or  for  21  years.  If,  however,  the  agent  does  a  different 
business  from  that  he  was  authorized  to  do,  the  principal  is  not  bound, 
because  the  agent  departed  from  the  subject  matter  of  the  instruction. 
There  is  a  very  important  distinction  on  this  subject,  of  the  powers  of  an 
agent,  between  a  general  agent  and  one  appointed  for  a  special  purpose. 
The  acts  of  a  general  agent,  or  one  whom  a  man  puts  in  his  place  to 
transact  all  his  business  of  a  particular  kind,  will  bind  his  principal,  so 
iong  as  he  keeps  within  the  general  scope  of  his  authority,  though  he  may 
act  contrary  to  his  private  instructions ;  and  the  rule  is  necessary  in  order 
to  prevent  fraud,  and  encourage  confidence  in  dealing.  But  an  agent, 
constituted  for  a  particular  purpose,  and  under  a  limited  power,  cannot  bind 
his  principal  if  he  exceeds  that  power.  The  special  authority  must  be 
strictly  pursued.  Whoever  deals  with  an  agent,* constituted  for  a  special 
purpose,  deals  at  his  peril,  when  the  agent  passes  the  precise  limits  of 
his  power. 


LEC.  XLI.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  Ill 

11.  What  if  the  servant  of  ahorse  dealer,  who  sells  for  his  master,  but 
with  express  instructions  not  to  warrant  as  to  soundness,  does  warrant,  is 
the  master  bound  by  the  warranty  ? — 621 

He  is;  because  the  servant,  having  a  general  power  to  sell,  acted 
within  the  general  scope  of  his  authority  ;  and  the  public  cannot  be  sup- 
posed to  be  acquainted  with  the  private  conversations  between  the  master 
and  servant.  So,  if  a  broker,  whose  business  it  is  to  buy  and  sell  goods 
in  his  own  name,  be  intrusted  by  a  merchant  with  the  possession  and  appa- 
rent control  of  his  goods,  it  is  an  implied  authority  to  sell,  and  the  princi- 
pal will  be  concluded  by  the  sale. 

12.  If  a  person  intrusts  his  watch  to  a  watchmaker  to  be  repaired,  and 
he  sells  it,  would  the  owner  be  bound  by  the  sale  1 — 622 

He  would  not.  The  watchmaker  is  not  exhibited  to  the  world  as 
owner,  and  credit  is  not  given  to  him  as  such,  merely  because  he  has 
possession  of  the  watch. 

13.  What  is  the  rule  as  to  the  right  of  brokers  and  factors,  to  sell  on 
credit,  without  a  special  authority  for  that  purpose  ? — 622 

That  a  factor  or  merchant  who  buys  or  sells  upon  commission,  or  as 
an  agent  for  others,  for  a  certain  allowance,  may  sell  on  credit,  without 
any  special  authority  for  that  purpose.  It  is  the  well  settled  usage,  that  an 
agent  may  sell  in  the  usual  way,  and,  consequently,  he  may  sell  upon 
credit  without  incurring  risk,  provided  he  be  not  restrained  by  his  instruc- 
tions, and" does  not  unreasonably  extend  the  term  of  credit,  and  provided 
he  uses  due  diligence  to  ascertain  the  solvency  of  the  purchaser.  But 
the  factor  cannot  sell  on  credit,  in  a  case  in  which  it  is  not  the  usage,  as 
the  sale  of  stock,  for  instance,  unless  he  be  expressly  authorized,  because 
this  would  be  to  sell  in  an  unusual  manner.  Nor  can  he  bind  his  princi- 
pal to  other  modes  of  payment  than  a  payment  in  money  at  the  time  of 
sale,  or  on  the  usual  credit. 

14.  What  if  the  factor  at  the  expiration   of  the  credit  given  on  a  sale, 
takes  a  note  payable  to  himself  at  a  future  day  ?  — 623 

He  makes  the  debt  his  own.  He  cannot  bind  his  principal  to  allow 
a  set-off  on  the  part  of  a  purchaser.  If  the  factor,  in  a  case  duly  author- 
ized, sells  on  credit,  and  takes  a  negotiable  note,  payable  to  himself,  the 
note  is  taken  in  trust  for  his  principal,  and  subject  to  his  order  ;  and  if  the 
purchaser  should  become  insolvent  before  the  day  of  payment,  the  cir- 
cumstance of  the  factor  having  taken  the  note  in  his  own  name,  would  not 
render  him  personally  responsible  to  his  principal.  Even  if  the  factor 
should  guaranty  the  sale,  and  undertake  to  pay  if  the  purchaser  failed,  or 
should  sell  without  disclosing  his  principal,  the  note  taken  by  him  as  factor 
would  still  belong  to  the  principal,  and  he  might  wave  the  guaranty,  and 
claim  possession  of  the  note,  or  give  notice  to  the  purchaser  not  to  pay  it 
to  the  factor.  In  such  a  case,  if  the  factor  should  fail,  the  note  would  not 
pass  to  his  assignees,  to  the  predjuflice  of  his  principal ;  and  if  the  assig- 


112  KENT'S  COMMENTARIES,  [VOL,  ii. 

nees  should  receive  payment  from  the  vendee,  they  would  be  responsible 
to  the  principal  ;  for  the  debt  was  not  in  law  due  them,  but  to  the  princi- 
pal, and  did  not  pass  under  the  assignment. 

15.  What  is  the  general  doctrine  on  this  subject  ? — 623 

That  where  the  principal  can  trace  his  property  into  the  hands  of  an 
agent  or  factor,  he  may  follow  either  the  identical  article,  or  its  proceeds, 
into  the  possession  of  the  factor,  or  his  legal  representatives  or  assignees, 
unless  they  should  have  paid  away  the  same  in  their  representative  char- 
acter, before  notice  of  the  claim  of  the  principal  The  same  rule  applies 
to  the  case  of  a  banker,  who  fails,  possessed  of  his  customer's  property. 
If  it  be  distinguishable  from  his  own,  it  does  not  pass  to  his  creditors,  but 
may  be  reclaimed  by  the  true  owner,  subject  to  the  liens  of  the  banker 
upon  it.  Though  payment  to  a  factor,  for  goods  sold  by  him  be  valid,  the 
principal  may  control  the  collection,  and  sue  for  the  price  in  his  own  name, 
or  for  damages  for  non-performance  of  the  contract ;  and  it  is  immaterial 
whether  the  agent  was  an  auctioneer  or  common  factor. 

16.  In  what  cases  does  a  factor  sell  on  credit  at  his  own  risk  ?  — 624 

When  he  acts  under  a  del  credere  commission,  for  an  additional  pre- 
mium, he  becomes  liable  to  his  principal  when  the  purchase  money  falls 
due  ;  for  he  is  substituted  for  the  purchaser,  and  is  bound  to  pay,  not  con- 
ditionally, but  absolutely,  and  in  the  first  instance.  The  principal  may 
call  on  him  without  looking  to  the  actual  vendee.  This  is  the  language  of 
Grove  v.  Dubois,  (1  Term  Rep.  112,)  and  it  seems  to  have  been  adopted 
and  followed  in  Leverick  v.  Meigs ;  (1  Cowen's  Rep.  645,)  and  yet  there 
is  some  difficulty  and  want  of  precision  in  the  cases  on  the  subject.  It  is 
said,  that  a  factor  under  a  del  credere  commission,  is  a  guarantor  of  the 
sale,  and  that  the  notes  which  he  takes  from  the  purchaser  belong 
to  his  principal,  equally  as  if  he  had  only  guarantied  them.  If  he  sells 
under  a  del  credere  commission,  he  is  to  be  considered,  as  between  him- 
self and  the  vendee,  as  the  sole  owner  of  the  goods  ;  and  yet  he  is  con- 
sidered only  as  surety.  In  some  late  cases  in  the  C.  B.,  in  England,  it 
was  considered  to  be  a  vexed  question,  whether  a  del  credere  commission 
was  a  contract  of  guaranty  merely  on  default  of  the  vendee,  or  one 
altogether  distinct  from  it,  and  not  requiring  a  previous  resort  to  the  pur- 
chaser. 

17.  What  is  the  rule  as  to  the  factor's  right  to  pledge  the  goods  of  his 
principal  ? — 625 

That  he  cannot  pledge  them  as  security  for  his  own  debt,  not  even 
though  there  be  the  formality  of  a  bill  of  parcels  and  a  receipt.  The 
principal  may  recover  the  goods  of  the  pawnee  ;  and  his  ignorance  that 
the  factor  held  the  goods  in  the  character  of  factor  is  no  excuse. 
The  principal  is  not  obliged  to  tender  to  the  pawnee  the  balance  due  from 
the  principal  to  the  factor  :  for  the  lien  which  the  factor  might  have  had, 
for  such  balance  is  personal,  and  cannot  be  transferred  by  his  tortious  act. 


LEC.  XL1.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  113 

Though  the  factor  should  barter  the  goods  of  his  principal,  yet  no  prop- 
erty passess  by  the  act,  any  more  than  in  the  case  of  pledging  them,  and 
the  owner  may  sue  the  innocent  purchaser  in  trover.  The  doctrine  that 
the  factor  cannot  pledge,  is  sustained  so  strictly,  that  it  is  admitted  that  he 
cannot  do  it  by  endorsement  and  delivery  of  the  bill  of  lading,  any  more 
than  by  delivery  of  the  goods  themselves.  To  pledge  the  goods  of  the 
principal,  is  beyond  the  'scope  of  the  factor's  power  ;  and  every  attempt 
to  do  it,  under  colour  of  a  sale,  is  tortious  and  void. 

18.  What  exception  is  there  to  this  rule  1 — 62*6 

The  case  of  negotiable  paper,  for  there  possession  and  property  go 
together,  and  carry  with  them  a  disposing  power.  A  factor  may  pledge 
the  negotiable  paper  of  his  principal  as  security  for  his  own  debt,  and  it 
will  bind  the  principal,  unless  he  can  charge  the  party  with  notice  of  the 
fraud  or  want  of  title  in  the  agent. 

19.  What  is  the  rule  as  to  the  factor's  right  to  deliver  the  goods  of  his 
principal  to  a  third  person  ? — 626 

That  he  may  deliver  them  to  a  third  person  for  his  own  security, 
with  notice  of  his  lien,  and  as  his  agent,  to  keep  possession  for  him. 
Such  a  change  of  the  lien  does  not  effect  the  factor's  right,  for  it  is,  in  ef- 
fect, a  continuance  of  the  factor's  possession.  So,  if  a  factor,  having 
goods  consigned  to  him  for  sale,  should  put  them  into  the  hands  of  an  auc- 
tioneer, or  commission  merchant  connected  with  the  auctioneer  in  busi- 
ness, to  be  sold,  the  auctioneer  may  safely  make  an  advance  on  the  goods 
for  purposes  connected  with  the  sale,  as  part  payment  in  advance,  or  in 
anticipation  of  the  sale,  according  to  the  ordinary  usage  in  such  cases. 
But  if  the  goods  be  put  into  the  hands  of  an  auctioneer  to  sell,  and,  in- 
stead of  advancing  money  upon  them  in  immediate  reference  to  the  sale 
according  to  usage ;  the  auctioneer  should  become  a  pawnbroker,  and  ad- 
vance money  on  the  goods  by  way  of  loan,  and  in  the  character  of  pawrior 
instead  of  seller,  he  has  no  lien  on  the  goods.  In  Graham  v.  Dyster,  it 
was  decided  by  K.  B.,  that  though  the  principal  drew  upon  his  factor  for 
the  amount  of  the  consignment,  and  the  goods  were  sent  to  the  factor  to 
be  dealt  with  according  to  his  discretion,  the  factor  could  not  pledge  the 
goods,  even  in  that  case,  to  raise  money  to  meet  the  bills. 

20.  What  is  the  rule  as  to  the  liability  of  an  agent  upon  his  contract  as 
agent  ? — 630 

The  general  rule  is,  that  where  an  agent  is  duly  constituted,  and 
names  his  principal,  and  contracts  in  his  name,  the  principal  is  responsi- 
ble, and  not  the  agent.  The  agent  becomes  personally  liable  only  when 
the  principal  is  not  known,  or  when  there  is  no  responsible  principal,  or 
where  the  agent  becomes  liable  by  an  undertaking  in  his  own  name,  or 
when  he  exceeds  his  power.  If  he  makes  the  contract  in  behalf  of  his 
principal,  and  discloses  his  name  at  the  time,  he  is  not  personally  liable, 
not  even  though  he  should  take  a  note  for  the  goods  sold,  payable  to  him- 
15 


114  KENT'S  COMMENTARIES,  [VOL.  n, 

self.  And  if  an  agent  buys  in  his  own  name,  but  for  the  benefit  of  his 
principal,  and  without  disclosing  his  name,  the  principal  is  also  bound  as 
well  as  the  agent,  provided  the  goods  came  to  his  use,  or  the  agent  acted 
in  the  business  intrusted  to  him,  and  according  to  his  power. 

21.  What   are  the  rules  by  which  attorneys  must  execute  powers? 
—631 

That  an  attorney  who  executes  a  power,  as  by  giving  a  deed,  must 
do  it  in  the  name  of  his  principal  ;  for  if  he  executes  it  in  his  own  name, 
though  he  describes  himself  to  be  the  agent  or  attorney  of  his  principal, 
the  deed  is  held  to  be  void  ;  and  the  attorney  is  not  bound,  even  though 
he  had  no  authority  to  execute  the  deed,  when  it  appears  on  the  face  of 
it  to  be  the  deed  of  the  principal.  But  if  the  agent  binds  himself  person- 
ally, and  engages  expressly  in  his  own  name,  he  will  be  held  responsible, 
though  he  should,  in  the  covenant,  give  himself  the  description  or  charac- 
ter of  agent.  And  though  the  attorney,  who  acts  without  authority,  but 
in  the  name  of  the  principal,  be  not  personally  bound  by  the  instrument 
he  executes,  if  it  contain  no  covenant  or  promise  on  his  part,  yet  there  is 
a  remedy  against  him  by  special  action  on  the  case,  for  assuming  to  act 
when  he  had  no  power. 

22.  What  is  the  rule  as  to  the  owner's  right  to  collect  the  proceeds  of 
goods  sold  by  his  factor  ? — 632 

That  he  may  command  such  proceeds,  and  is  entitled  to  call  upon  the 
buyer  for  payment,  before  the  money  is  paid  over  to  the  factor ;  and  a  pay- 
ment to  the  factor  after  notice  from  the  owner  not  to  pay,  would  be  a  pay- 
ment by  the  buyer  in  his  own  wrong,  and  it  would  not  prejudice  the  rights 
of  the  principal.  If,  however,  the  factor  should  sell  in  his  own  name  as 
owner,  and  not  disclose  his  principal,  a  purchaser  who  dealt  bona  fide 
with  the  factor  as  owner,]will  be  entitled  to  set  off  any  claim  he  may  have 
against  the  factor,  in  answer  to  a  demand  of  the  principal. 

23.  What  is  the  distinction  made  in  the  books,  in  regard  to  personal  re- 
sponsibility, between  public  and  private  agents  ? — 632 

That  if  an  agent,  on  behalf  of  government,  makes  a  contract,  and  de- 
scribes himself  as  such,  he  is  not  personally  bound,  even  though  the  terms 
of  the  contract  be  such  as  might,  in  a  case  of  a  private  nature,  involve 
him  in  a  personal  obligation. 

24.  What  is  the  rule  as  to  the  right  of  an  agent  to  emplov  a  sub-agent  ? 
—633 

That  an  agent,  without  an  express  authority,  has  not  power  to  employ 
a  sub-agent  to  do  the  business,  without  the  knowledge  or  consent  of  his 
principal.  The  maxim  is,  that  delegatus  non  potest  delegare,  and  the 
agency  is  generally  a  personal  trust  and  confidence  which  cannot  be  del- 
egated. 


&EC.   XLI.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  115 

25.  What  is  meant  by  lien  ? — 634 

The  right  of  an  agent  to  retain  possession  of  property  until  some  de- 
mand of  his  be  satisfied.  It  is  created  either  by  common  law,  or  by  the 
usage  of  trade,  or  by  the  express  agreement  or  particular  usage  of  the 
parties. 

26.  Into  what  classes  are  liens  distinguished  ? — 634 

Into  general  and  special.  A  general  lien,  is  the  right  to  retain  pro- 
perty of  another,  for  a  general  balance  of  accounts  ;  but  a  particular  lien 
is  a  right  to  retain  it  only  for  a  charge  on  account  of  labour  employed  or 
expenses  bestowed  upon  the  identical  property  detained.  General  liens 
are  looked  upon  with  jealousy,  because  they  encroach  upon  the  common 
law,  and  destroy  the  equal  distribution  of  the  debtor's  estate  among  his 
creditors  :  and  the  usage  of  any  trade  sufficient  to  establish  a  general  lien, 
must  have  been  so  uniform,  and  notorious,  as  to  warrant  the  inference  that 
the  party  against  whom  the  right  is  claimed  had  knowledge  of  it.  A  gen- 
eral lien  may  be  created  by  express  agreement. 

27.  What  is  necessary  to  create  a  lien  ? — 638 

Possession  of  the  goods ;  and  the  right  does  not  extend  to  debts 
which  accrued  before  the  character  of  factor  commenced  ;  nor  where  the 
goods  of  the  principal  do  not,  in  fact,  come  to  the  factor's  hands,  even 
though  he  may  have  accepted  bills  upon  the  faith  of  the  consignment,  and 
paid  part  of  the  freight. 

28.  What  persons   have  a  general  lien  on  goods  in  their  possession  1 
—640 

A  factor  has  a  general  lien  for  the  balance  of  his  general  account, 
arising  in  the  course  of  dealings  between  him  and  his  principal ;  and  this 
lien  extends  to  all  the  goods  of  the  principal  in  his  hands  in  the  character 
of  factor.  The  factor  has  a  lien,  also,  on  the  price  of  the  goods  which  he 
has  sold  as  factor,  though  he  has  parted  with  the  possession  of  the  goods  ; 
and  he  may  enforce  payment  from  the  buyer  to  himself,  in  opposition  to 
his  principal.  This  rule  applies,  when  he  becomes  surety  for  his  princi- 
pal, or  sells  under  a  del  credere  commission,  or  is  in  advance  for  the  goods 
by  actual  payment.  Attorneys  and  solicitors,  as  well  as  factors,  have  a 
general  lien,  upon  the  papers  of  their  clients  in  their  possession,  for  the 
balance  of  their  professional  accounts.  Dyers  have  likewise  a  general 
lien  on  the  goods  sent  to  them  to  dye,  for  the  balance  of  a  general  ac- 
count. A  banker  has  also  a  general  lien  on  all  the  paper  securities  which 
come  to  his  hand.  So  has  an  insurance  broker.  A  wharfinger  has  also  a 
general  lien. 

29.  By  what  acts  may  an  agency  cease  1— 643 

It  may  terminate  by  the  death  of  the  agent ;  by  the  limitation  of  the 
power  to  a  particular  period  of  time  ;  by  the  execution  of  the  business 


116  KENT'S  COMMENTARIES,  [VOL-  n. 

which  the  agent  was  constituted  to  perform  ;  by  a  change  in  the  condition 
of  the  principal ;  by  his  express  revocation  of  the  power  ;  and  by  his 
death.  The  agent's  trust  is  not  transferable,  either  by  the  act  of  the 
party,  or  by  operation  of  law.  According  to  the  civil  law,  if  the  agent 
had  entered  upon  the  execution  of  the  trust  in  his  lifetime,  and  left  it  par- 
tially executed,  but  incomplete,  at  his  death,  his  legal  representatives 
would  be  bound  to  complete  it.  An  authority  given  for  private  purposes 
to  two  persons,  cannot  be  executed  by  the  survivor,  unless  it  be  so  ex- 
pressly provided,  or  it  be  an  authority  coupled  with  an  interest. 


END    OF    VOLUME    SECOND. 


LKC.    XLII.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  117 


VOLUME    III. 

OF  THE  LAW  CONCERNING  PERSONAL 
PROPERTY. 

LECTURE    XLII. 
OF  THE  HISTORY  OF  MARITIME  LAW. 

1.  Is  the  marine  law  a  municipal,  or  international  law?  —  1 

It  is  a  part  of  the  general  law  of  nations,  and  not  the  law  of  a  par- 
ticular country.  The  marine  law  of  the  United  States  is  the  same  as 
the  marine  law  of  Europe ;  and  Lord  Mansfield  applied  to  its  universal 
adoption  the  expressive  language  of  Cicero,  when  speaking  of  the  eternal 
laws  of  justice  :  Nee  erit  alia  lex  Romas,  alia  Athaenis ;  alia  nunc,  alia 
posthac ;  sed  et  omnes  gentes,  et  omni  tempore  una  lex  et  sempiterna,  et  im- 
mortalis  continebit. 

2.  What  is  known  of  the  marine  legislation  of  the  ancients  ? — 2 

There  is  no  certain  evidence  that  either  the  Phoenicians,  Carthage- 
nians,  or  any  of  the  states  of  Greece,  formed  any  authoritative  digest  of 
naval  law.  Those  powers  were  distinguished  for  navigation  and  com- 
merce, and  the  Athenians  in  particular  were  very  commercial,  and  they 
kept  up  a  busy  intercourse  with  the  Greek  colonies  in  Asia  Minor,  and  on 
the  borders  of  the  Euxine  and  the  Hellespont,  in  the  islands  of  the  ./Egean 
sea,  and  in  Sicily  and  Italy.  They  were  probably  the  greatest  naval 
power  in  all  antiquity.  Themistocles  had  the  sagacity  to  discern  the 
wonderful  influence  and  controlling  ascendency  of  naval  power.  It  is 
stated  by  Diodorus  Siculus,  that  he  persuaded  the  Athenians  to  build 
twenty  ships  annually.  He  established  the  Piraeus  as  a  great  commercial 
emporium  and  arsenal  for  Athens,  and  the  cultivation  of  her  naval  superi- 
ority and  glory  was  his  favourite  policy  ;  for  he  held  the  proposition,  which 
Pompey  afterwards  adopted,  that  the  people,  who  were  masters  of  the  sea, 
would  be  masters  of  the  world.  The  Athenians  encouraged,  by  their  laws, 
navigation  and  trade  ;  and  there  was  a  particular  jurisdiction  at  Athens  for 
the  cognizance  of  contracts,  and  controversies  between  merchants  and 
mariners. 

3.  Who  were  the  earliest  people  that  actually  created,  digested,  and 
promulgated  a  system  of  marine  law  ? — 3 


118  KENT'S  COMMENTARIES,  [VOL.  in. 

The  Rhodians.  They  obtained  the  sovereignty  of  the  seas  about 
nine  hundred  years  before  the  Christian  era,  and  were  celebrated  for  their 
naval  power  and  discipline.  Their  laws  concerning  navigation  were  re- 
ceived at  Athens,  and  in  all  the  islands  of  the  ^Egean  sea,  and  throughout 
the  coasts  of  the  Mediterranean,  as  a  part  of  the  law  of  nations. 

4.  By  whom  was  the  earliest  code  of  modern  sea  laws  established? — 9 

By  the  republic  of  Amalphi,  in  Italy,  towards  the  end  of  the  eleventh 
century. 

5.  What  code  of  marine  law  is  the  oldest  now  extant  ? — 10 

The  Consolato  del  mare.  This  is  a  compilation  of  the  usages  and  laws 
of  the  Mediterranean  powers,  and  is  said  to  have  been  digested  at  Barce- 
lona, in  the  Catalan  tongue,  during  the  middle  ages,  by  order  of  the  kings 
of  Arragon.  Its  origin,  however,  is  doubtful,  and  the  precise  time  of  its 
publication  not  known  ;  but  it  is  certain  that  it  became  the  common  law  of 
all  the  commercial  powers  of  Europe.  The  marine  laws  of  Italy,  Spain, 
France,  and  England  were  greatly  affected  by  its  influence  ;  and  it  formed 
the  basis  of  subsequent  maritime  ordinances. 

5.  What  collection  is  next  in  point  of  antiquity  and  celebrity  ? — 12 

The  laws  of  Oleron.  They  were  collected  and  compiled  in  the 
island  of  Oleron,  on  the  coast  of  France,  in  or  about  the  time  of  Richard 
I.  They  were  borrowed  from  the  Rhodian  laws,  and  the  Consolato,  with 
alterations  and  additions,  adapted  to  the  trade  of  western  Europe. 

6.  By  whom  were  the  laws  of  Wisbuy  compiled?  — 13 

By  the  merchants  of  the  city  of  Wisbuy,  in  the  island  of  Gothland, 
in  the  Baltic  sea,  about  the  year  1288.  They  were  in  many  points,  a 
repetition  of  the  judgments  of  Oleron,  and  became  the  basis  of  the  Han- 
seatic  league. 

» 

7.  About  what  time  was  the  Hanseatic  league  formed  ? — 14 

This  renowned  association  was  begun  at  least  as  early  as  the  middle 
of  the  thirteenth  century,  and  it  originated  with  the  cities  of  Lubec,  Bre- 
men, and  Hamburgh.  The  free  and  privileged  Hanse  Towns  became  the 
asylum  of  commerce,  and  the  retreats  of  civilization,  when  the  rest  of 
Europe  was  subjected  to  the  iron  sway  of  the  feudal  system,  and  the  north- 
ern seas  were  infested  by  "  savage  clans,  and  roving  barbarians."  Their 
object  was  mutual  defence  against  piracy  by  sea  and  pillage  by  land. 
They  were  united  by  a  league  offensive  and  defensive,  and  with  an  inter- 
community of  citizenship  and  privileges.  The  association  of  the  cities  of 
Lubeck,  Brunswick,  Dantzick,  and  Cologne,  commenced  in  the  year  1254, 
according  to  Cleirac,  and  in  1164,  according  to  Azuni ;  and  it  became  so 
safe  and  beneficial  a  confederacy,  that  all  the  cities  and  large  towns  on 
the  Baltic,  and  on  the  navigable  rivers  of  Germany,  to  the  number  of 


LEC.  XLII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  119 

eighty-one,  acceded  to  the  union.  One  of  the  means  adopted  by  the 
confederates  to  insure  prosperity  to  their  trade,  and  to  protect  them  from 
controversies  with  each  other,  was  the  formation  of  a  code  of  maritime  law. 

9.  At  what  time  was  the  French  ordinance  upon  commerce  promul- 
gated ?— 15 

In  1673,  and  the  ordinance  of  the  marine  in  1681.  This  ordinance, 
says  Valin,  was  executed  in  a  masterly  manner.  It  was  so  comprehensive 
in  its  plan,  so  excellent  in  the  arrangement  of  its  parts,  so  just  in  its  deci- 
sions, so  wise  in  its  general  and  particular  policy,  so  accurate  and  clear 
in  its  details,  that  it  deserves  to  be  considered  as  a  model  of  a  perfect 
code  of  maritime  jurisprudence. 

10.  Where  is  the  English  maritime  law  to  be  found? — 18 

The  English  nation  never  had  any  general  and  solemnly  enacted  code 
of  maritime  law,  resembling  those  which  have  been  mentioned  as  belong- 
ing to  the  other  European  nations,  and  promulgated  by  legislative  authority; 
This  deficiency  has  been  supplied,  not  only  by  several  extensive  private 
compilations,  but  has  been  more  eminently  and  more  authoritatively  sup- 
plied by  a  series  of  judicial  decisions,  commencing  about  the  middle  of 
the  last  century.  Those  decisions  have  shown,  to  the  admiration  of  the 
world,  the  masterly  acquaintance  of  the  English  judiciary  with  the  prin- 
ciples and  spirit  of  commercial  policy  and  general  jurisprudence,  and  they 
have  afforded  undoubted  proofs  of  the  entire  independence,  impartiality, 
and  purity  of  the  administration  of  justice.  The  numerous  cases  in  the 
books  of  reports  which  have  arisen  upon  maritime  questions,  resemble 
elementary  treatises  in  the  depth,  extent,  and  variety  of  their  researches. 
The  English  maritime  law  can  now  be  studied  in  the  adjudged  cases  with 
at  least  as  much  profit,  and  with  vastly  more  pleasure,  than  in  the  dry  and 
formal  didactic  treatises  and  ordinances  professedly  devoted  to  the  science, 

11.  Where  do  we  find  the  marine  law  of  the  United  States  ? — 19 

As  in  England,  in  private  treatises  and  judicial  decisions.  Our  im- 
provement has  been  rapid  and  our  career  illustrious,  since  the  adoption  of 
the  present  constitution  of  the  United  States.  There  have  been  several 
respectable  treatises  on  subjects  of  commercial  law.  The  decisions  in 
the  federal  courts,  in  commercial  cases,  have  done  credit  to  the  moral  and 
intellectual  character  of  the  nation ;  and  the  admiralty  courts  in  particular 
have  displayed  great  research,  and  a  familiar  knowledge,  of  the  principles 
of  the  marine  law  of  Europe. 


120  KENT'S  COMMENTARIES,  [VOL.  in. 

LECTURE    XLIII. 
OF  THE  LAW  OF  PARTNERSHIP. 

1.  What  is  a  partnership  ? — 23 

It  is  a  contract  of  two  or  more  persons,  to  place  their  money,  effects, 
labour,  and  skill,  or  some,  or  all  of  them,  in  lawful  commerce  or  business, 
and  to  divide  the  profit,  and  bear  the  loss  in  certain  proportions. 

2.  What  are  the  two  leading  principles  of  the  contract  ? — 24 

A  common  interest  in  the  stock  of  the  company,  and  a  personal  re- 
sponsibility for  the  partnership  engagements. 

3.  To  what  does  the  common  interest  apply  ? — 24 

To  all  the  partnership  property,  whether  vested  in  the  first  instance 
by  their  several  contributions  to  the  common  stock,  or  afterwards  acquired 
in  the  course  of  the  partnership  business  ;  and  that  property  is  first  liable 
for  the  debts  of  the  company  ;  and  after  they  are  paid,  and  the  partnership 
dissolved,  then  it  is  subject  to  a  division  among  the  members,  or  their 
representatives,  according  to  agreement. 

4.  What  if  one  party  advance  funds,  and  another  furnish  his  personal 
services  or  skill,  in  carrying  on  a  trade,  and  is  to  share  the  profits  1  —  24 

It  amounts  to  a  partnership.  But  each  party  must  engage  to  bring 
into  the  common  stock  something  that  is  valuable  ;  and  a  mutual  contri- 
bution of  that  which  has  value  is  of  the  essence  of  the  contract. 

5.  Are  joint  possessors  partners  ? — 25 

A  joint  possession  renders  persons  tenants  in  common,  but  it  does 
not,  of  itself,  constitute  them  partners,  and,  therefore,  surviving  partners, 
and  the  representatives  of  a  deceased  partner,  are  not  partners,  notwith- 
standing they  have  a  community  of  interest  in  the  joint  stock.  There 
must  be  a  communion  of  profit  to  constitute  a  partnership,  as  between  the 
parties. 

6.  Is  a  joint  purchase,  with  a  view  to  separate  and  distinct  sales,  by 
each  person  on  his  own  account   sufficient  to  constitute  a  partnership  ? 
—25 

It  is  not. 

7.  If  several  persons  who  had  never  met  and  contracted  together  as 
partners,  agree  to  purchase  goods  in  the  name  of  one  of  them  only,  and 


LEG.  XLIII.]  REDUCED  TO  QUESTION'S  AND  ANSWERS.  121 

to  take  aliquot  share  of  the  purchase,  and  employ  an  agent  for  that  pur- 
pose ;  do  they  by  that  act  become  partners,  and  answerable  to  the  seller 
in  that  character  ? — 25 

They  do  not,  provided  they  are  not  jointly  concerned  in  the  re-sale 
of  their  shares,  and  have  not  permitted  the  agent  to  hold  them  out  as 
jointly  liable  with  himself.  The  same  distinction  was  taken  in  the  civil 
law  :  qui  nolunt  inter  se  contendere,  solent  per  nuntium  rem  emcre  in  com- 
mune ;  quod  a  societate  longe  remotum.  It  has  been  frequently  recognized 
in  this  country,  and  may  be  considered  as  a  settled  rule. 

8.  What  if  the  purchase  be  on  a  separate,  and  not  on  a  joint  account  ? 
—26 

If  the  interests  of  the  purchasers  be  afterwards  mingled,  with  a  view 
to  a  joint  sale,  a  partnership  exists  from  the  time  that  the  shares  are 
brought  into  a  common  mass.  A  participation  in  the  loss  or  profit,  or  hold- 
ing himself  out  to  the  world  as  a  partner,  so  as  to  induce  others  to  give 
credit  on  that  assurance,  renders  a  person  responsible  as  a  partner. 

9.  What  does  a  partnership  necessarily  imply  ?— 26 
A  union  of  two  or  more  persons. 

10.  What  if  a  single  individual,  for  the  purpose  of  a  fictitious  credit, 
were  to  assume  a  co-partnership  name  I — 26 

The  only  real  partnership  principle  that  could  apply  to  his  case,  would 
be  the  preference  to  be  given  to  creditors  dealing  with  him  under  that  des- 
cription, in  the  distribution  of  his  effects.  But  that  would  be  inadmissible, 
and  contrary  to  the  grounds  upon  which  partnerships  are  created  and  sus- 
tained ;  and  so  the  law  has,  in  another  country,  been  understood  and  de- 
clared.— Bell's  Commentaries  on  the  Law  of  Scotland,  vol.  ii.  625. 

1 1 .  What  is  the  rule  in  relation  to  large  unincorporated  joint  stock  com- 
panies ? — 26 

Trading  upon  joint  stock  is  usually  regulated  by  special  agreement  ; 
but  the  established  law  of  the  land,  in  reference  to  such  partnerships,  is 
the  same  as  in  ordinary  cases,  and  every  member  of  the  company,  (what- 
ever private  arrangement  there  may  be  to  the  contrary  between  the  mem- 
bers, and  which  is  only  a  mischievious  delusion)  is  liable  for  the  debts  of 
the  concern. 

12.  What  is  the  rule  in  relation  to  incorporated  companies  ? — 27 

That  incorporated  companies,  though  constituted  expressly  for  the 
purposes  of  trade,  are  not  partnerships,  or  joint  traders,  within  the  purview 
of  the  law  of  partnership,  and  the  stockholders  are  not  personally  respon- 
sible for  the  company's  debts  or  engagements,  and  their  property  is  affected 
only  to  the  extent  of  their  interest  in  the  company. 
16 


KENT'S  COMMENTARIES,  [VOL.  in. 

13.  In  what  manner  may  the  contract  of  partnership  be  formed  ? 27 

It  need  not  be  in  writing  ;  for  though  there  be  no  express  articles  of 
co-partnership,  the  obligation  of  a  partnership  engagement  may  equally 
be  implied  in  the  acts  of  the  parties  ;  and  if  persons  have  a  mutual  inter- 
est in  the  profits  and  loss  of  any  business  carried  on  by  them,  or  if  they 
hold  themselves  out  to  the  world  as  joint  traders,  they  will  be  held  respon- 
sible as  partners  to  third  persons.  If  a  person  partakes  of  the  profits,  he 
is  liable  for  the  losses.  It  is  not  necessary  that  every  member  of  the  com- 
pany should,  in  every  event,  participate  in  the  profits.  It  would  be  a  valid 
partnership,  according  to  the  civil  law,  if  one  of  the  members  had  a  rea- 
sonable expectation  of  profit.  So,  one  partner  may  retire  under  an  agree- 
ment to  abide  his  proportion  of  risk  of  loss,  and  take  a  sum  in  gros°s  for 
his  share  of  future  uncertain  profits ;  or  he  may  take  a  gross  sum  as  his 
share  of  the  presumed  profits,  with  an  agreement  that  the  remaining  part- 
ners are  to  assume  all  the  risks. 

14.  What  is  the  rule  as  to  the  extent  of  partnership  connexions  ? 30 

That  there  may  be  a  general  partnership  at  large,  or  it  may  be  limit- 
ed to  a  particular  branch  of  business,  or  to  one  subject.     There  may  be  a 
partnership  in  the  goods  in  a  particular  adventure,  or  it  may  be  confined  to 
the  profits  thereof.     If  two  persons  should  draw  a  bill  of  exchange,  they 
are  considered  as  partners  in  respect  to  that  bill,  though  in  every  other 
respect  they  remain  distinct. 

15.  What  is  the  rule  governing  dormant  partners  ?  — 31 

That  they  are  equally  liable  when  discovered,  as  if  their  names  had 
appeared  in  the  firm,  and  although  they  were  unknown  to  be  partners  at 
the  time  of  the  creation  of  the  debt. 

16.  Who  are  nominal  partners  ?— 32 

Persons  who  have  no  actual  interest  in  the  trade,  or  its  profits  ;  but 
who  become  responsible  as  partners  by  voluntarily  suffering  their  names  to 
appear  to  the  world  as  partners,  by  which  means  they  lend  to  the  partner- 
ship the  sanction  of  their  credit.  There  is  a  just  and  marked  distinction 
between  partnership  as  respects  the  public,  and  as  respects  the  parties  ; 
and  a  person  may  be  held  liable  as  a  partner  to  third  persons,  although  the 
agreement  does  not  create  a  partnership  as  between  the  parties  themsel- 
ves. Each  individual  is  answerable  in  solido  to  the  whole  amount  of  the 
debts,  without  reference  to  the  proportion  of  his  interest,  or  to  the  nature 
of  the  stipulation  between  him  and  his  associates.  Even  if  it  were  the 
intention  of  the  parties  that  they  should  not  be  partners.  This  principle 
of  law  inculcates  good  faith  and  ingenuous  dealing,  and  it  is  now  regarded 
by  the  English  courts  as  a  fundamental  doctrine.  It  has  been  explicitly  as- 
serted with  us,  and  is  now  incorporated  in  the  jurisprudence  of  this  coun- 
try. 

17.  What  if  executors  in  the  disinterested  performance  of  a  trust,  con- 


Z.EC.  XLIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  123 

tinue  the  testator's  share  in  a  partnership,  for  the  benefit  of  his  infant  chil- 
dren ?  — 33 

They  may  render  themselves  personally  liable  as  dormant  partners. 

18.  How  are  limited  partnerships  formed? — 35 

They  consist  of  one  or  more  persons  jointly  and  severally  responsi- 
ble according  to  the  existing  laws,  who  are  called  general  partners,  and 
one  or  more  who  furnish  certain  funds  to  the  common  stock,  and  whose 
liability  shall  extend  no  further  than  the  fund  furnished,  and  who  are 
called  special  partners.  The  names  of  the  special  partners  are  not  to  be 
used  in  the  firm,  nor  are  they  to  transact  any  business  on  account  of  the 
partnership,  or  be  employed  for  that  purpose,  as  agents.  By  the  civil 
code  of  Louisiana,  art.  2810,  if  the  advance  in  commendam,  i.  e.  (the  funds 
furnished  by  the  special  partner,)  has  been  made  to  one  person  only,  such 
person  must  carry  on  the  business  in  his  sole  name,  and  must  not  take  the 
addition,  "and  company."  And  if  the  partner  in  commendam  shall  take 
any  part  in  the  business  of  the  partnership  or  permit  his  name  to  be  used 
in  the  firm,  or  knowingly  permit  any  single  person  to  whom  he  has  made 
the  advance,  to  add  any  words  to  his  name  or  firm,  that  may  imply  that 
he  has  other  partners,  besides  the  partner  in  commendam,  when  in  fact  he 
has  none,  such  partner  in  commendam  shall  be  liable  to  all  the  responsibil- 
ities of  a  general  partner  in  the  business  for  which  he  has  made  the  ad- 
vance. 

19.  What  is  the  legal  interest  of  partners  in  their  stock  in  trade  ? — 36 

They  are  joint  tenants,  but  without  the  jus  accrescendi,  or  right  of 
survivorship  ;  and  this,  according  to  Lord  Coke,  was  part  of  the  law 
merchant.  On  the  death  of  one  partner,  his  representatives  become  ten- 
ants in  common  with  the  survivor,  and  with  respect  to  ckoses  in  action, 
survivorship  so  far  exists  at  law,  that  the  remedy  to  reduce  them  into  pos- 
session vests  exclusively  in  the  survivor,  for  the  benefit  of  all  the  parties 
in  interest.  The  interest  of  each  partner  in  the  partnership  property,  is 
his  share  in  the  surplus,  after  the  partnership  accounts  are  settled,  and  all 
just  claims  satisfied. 

20.  What  is  the  legal  interest  of  partners  in  real  estate  acquired  with 
partnership  funds  ? — 37 

A  joint-tenancy  in  law,  yet  equity  will  hold  it  to  be  a  tenancy  in 
common,  and  as  forming  part  of  the  partnership  fund  ;  and  the  better 
opinion  would  seem  to  be,  that  equity  will  consider  the  person  in  whom 
the  legal  estate  is  vested,  as  trustee  for  the  whole  concern,  and  the  pro- 
perty will  be  entitled  to  be  distributed  as  personal  estate.  In  Tennessee, 
New  York,  and  Massachusetts,  it  has  been  held,  that  partners  purchasing 
an  estate  out  of  the  joint  funds,  and  taking  one  conveyance  to  themselves 
as  tenants  in  common,  would  hold  their  undivided  moieties  in  separate  and 
independent  titles,  and  that  the  same  would  go,  on  the  insolvency  of  the 
firm,  or  death  of  either,  to  pay  their  respective  creditors  at  large.  3  Hayw., 
96.  15  Johns.  Rep.  159.  11  Mass.  Rep.  496 


KENT'S  COMMENTARIES,  [VOL.  in. 

In  Virginia,  such  an  investment  has  been  regarded  as  partnership 
stock,  and  subject  to  all  the  incidents  of  partnership  property.  (4  Mum- 
ford,  316.)  In  Winslow  v.  Chifelle,  (State  Reports  in  Equity,  S.  Car.,)  it 
was  held  that  lands  held  and  used  by  partners,  in  the  business  of  a  mill, 
was  co-partnership  property,  and  subject  to  be  applied,  like  other  partner- 
ship property,  to  the  payment  of  partnership  debts,  in  preference  to  the 
claims  of  separate  creditors.  The  general  principle  now  declared  of  the 
English  law  is,  that  real  estate  acquired  for  the  purpose  of  a  trading  con- 
cern, is  to  be  considered  as  partnership  property,  and  to  be  first  applied  in 
satisfaction  of  the  demands  of  the  partnership.  (1  Russel  $  Mylne,  45.) 
It  is  taken  to  be  personal  estate,  and  retains  that  character  as  between  the 
real  and  personal  representatives  of  a  deceased  partner.  (1  Mylne  &• 
Keene,  649.)  In  Ohio  a  similar  rule  has  been  declared,  and  that  such 
property  was  not  subject  to  the  dower  of  the  widow  of  a  deceased  part- 
ner, as  against  partnership  debts.  (1  Hammond's  Ohio  Rep.,  535.)  The 
better  opinion  appears  to  be,  that  although  the  legal  estate  in  freehold 
property  purchased  by  the  partners,  for  the  purpose  of  their  trade,  will  go 
in  the  course  of  ordinary  descent  without  survivorship,  yet  the  equitable 
interest  in  such  property,  will  be  held  to  be  part  of  the  partnership  stock, 
and  distributable  as  personal  estate.  (Colyer  on  Part.,  76.) 

21.  How  are  ship-owners  considered? — 39 

In  Nicol  v.  Mumford,  (4  Johns.  Chan.  Rep.,  522,)  it  was  held,  that 
ship-owners  were  tenants  in  common,  and  were  not  to  be  considered  as 
partners,  nor  liable  each  in  solido,  nor  entitled  to  the  settlement  of  accounts, 
on  the  principle  of  partnership. 

22.  In  what  acts  may  a  partner  bind  his  firm  ? — 40 

He  can  buy  and  sell  partnership  effects,  and  make  contracts  in  refer- 
ence to  the  business  of  the  firm,  and  pay  and  receive,  and  draw  and 
endorse,  and  accept  bills  and  notes.  The  act  of  one  partner,  though  on 
his  private  account,  and  contrary  to  private  arrangement  among  themselves, 
will  bind  all  the  parties,  if  made  without  knowledge  in  the  other  party  of 
the  arrangement,  and  in  a  matter  which,  according  to  the  usual  course  of 
dealing,  has  reference  to  business  transacted  by  the  firm. 

In  all  contracts  concerning  negotiable  paper,  the  act  of  one  partner 
binds  all ;  and  even  though  he  signs  his  individual  name,  provided  it  ap- 
pears, on  the  face  of  the  paper,  to  be  on  partnership  account.  But  if 
a  bill  or  note  be  drawn  by  one  partner,  in  his  own  name  only,  and  without 
appearing  to  be  on  partnership  account,  the  partnership  is  not  bound  by 
the  signature,  even  though  it  was  made  for  a  partnership  purpose.  If, 
however,  the  bill  be  drawn  by  one  partner  in  his  own  name,  upon  the  firm, 
on  partnership  account,  the  act  of  drawing  has  been  held  to  amount,  irr 
judgment  of  law,  to  an  acceptance  of  the  bill  by  the  drawer  in  behalf  of 
the  firm,  and  to  bind  the  firm  as  an  accepted  bill.  And  though  the  part- 
nership be  not  bound  at  law  in  such  a  case,  it  is  held,  that  equity  will  force 
the  payment  of  it,  if  the  bill  was  actually  drawn  on  partnership  account. 


LEC.  XLIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  125 

23.  What  is  the  rule  with  respect  to  the  power  of  each  partner  over  the 
partnership  property  1— 44 

It  is  settled,  that  each  one,  in  ordinary  cases,  and  in  the  absence  of 
fraud  on  the  part  of  the  purchaser,  has  the  complete  jus  disponendi  of 
the  whole  partnership  interests,  and  is  considered  to  be  the  authorized 
agent  of  the  firm.  He  can  sell  the  effects,  or  compound  or  discharge  the 
partnership  debts.  A  like  power  in  each  partner  exists  in  respect  to  pur- 
chases on  joint  account ;  and  it  is  no  matter  with  what  fraudulent  views 
the  goods  were  purchased,  or  to  what  purposes  they  were  applied  by  the 
purchasing  partner,  if  the  seller  be  clear  of  the  imputation  of  collusion. 

24.  In  what  cases  may  a  partner  pledge  the  partnership  effects  1 — 46 

A  partner  may  pledge,  as  well  as  sell,  the  partnership  effects,  in  a 
case  free  from  collusion,  if  done  in  the  usual  mode  of  dealing,  and  it  has 
relation  to  the  trade  in  which  the  partners  are  engaged,  and  when  the 
pawnee  had  no  knowledge  that  the  property  was  partnership  property. 
But  this  principle  does  not  extend  to  part  owners  engaged  in  a  particular 
purchase  ;  for  they  are  regarded  as  tenants  in  common,  and  no  member 
can  convey  to  the  pawnee  a  greater  interest  than  he  himself  has  in  the 
concern.  If  one  member  acts  fraudulently  with  strangers  in  a  matter 
within  the  scope  of  the  partnership  authority,  the  firm  is,  nevertheless, 
bound  by  the  contract. 

25.  How  far  may  a  partner  bind  his  co-partners  by  guaranty  ? — 46 

It  was  formerly  understood,  that  one  partner  might  bind  his  co-part- 
ners by  a  guaranty,  or  letter  of  credit,  in  the  name  of  the  firm  ;  and  Lord 
Eldon,  in  the  case  Ex  parte  Gordon,  (15  Vesey,  286,)  considered  the  point 
too  clear  for  argument.  But  a  different  principle  seems  to  have  been 
adopted  ;  and  it  is  now  held,  that  one  partner  is  not  authorized  to  bind  the 
partnership  by  a  guaranty  of  the  debt  of  a  third  person,  without  a  special 
authority  for  that  purpose,  or  one  to  be  implied  from  the  previous  course 
of  dealing  between  the  parties,  unless  the  guaranty  be  afterwards  adopted 
by  the  firm.  The  guaranty  must  have  reference  to  the  regular  course 
of  business  transacted  by  the  partnership,  and  then  it  will  be  obligatory 
upon  the  company,  and  this  is  the  principle  upon  which  the  distinction 
rests. 

26.  In  what  cases  may  a  partner  bind  his  firm  by  deed  ? — 47 

A  partner  can  not  charge  the  firm  by  deed,  with  a  debt,  even  in  com- 
mercial dealings.  But  one  partner,  may,  by  the  special  authority  of  his 
co-partners  under  seal,  and  if  in  their  presence,  by  parol  authority,  execute 
a  deed  for  them  in  a  transaction  in  which  they  were  all  concerned.  The 
more  recent  cases  have  very  considerably  relaxed  the  former  strictness 
on  this  subject  ;  and  while  they  profess  to  retain  the  rule  itself,  they 
qualify  it  exceedingly,  in  order  to  make  it  suit  the  exigencies  of  commer- 
cial associations.  An  absent  partner  may  be  bound  by  a  deed  executed  on 


KENT'S  COMMENTARIES,  [VOL.  m. 

behalf  of  the  firm,  by  his  co-partner,  provided  there  be  either  a  previous 
parol  authority,  or  a  subsequent  parol  adoption  of  the  act. 

One  partner  may  by  deed  execute  the  ordinary  release  of  a  debt  be- 
longing to  the- co-partnership,  and  thereby  bar  the  firm  of  a  right  it  pos- 
sessed jointly.  A  release  by  one  partner,  to  a  partnership  debtor,  after 
the  dissolution  of  the  partnership,  has  been  held  to  be  a  bar  of  any  action 
at  law  against  the  debtor.  So,  also,  in  bankruptcy,  one  partner  may  exe- 
cute a  deed,  and  do  any  other  act  requisite  in  proceedings  in  bankruptcy. 
The  acknowledgment  of  a  debt  by  a  single  partner,  during  the  continuance 
of  the  partnership  will  bind  the  firm. ' 

27.  How  may  a  partnership  be  dissolved  ? — 52 

If  a  partnership  be  formed  for  a  single  purpose  or  transaction,  it 
ceases  as  soon  as  the  business  is  completed.  If  it  be  for  a  definite  period, 
it  terminates  of  course  when  the  period  arrives.  It  may  be  dissolved  by 
the  voluntary  act  of  the  parties,  or  of  one  of  them,  and  by  the  death, 
insanity,  or  bankruptcy  of  either,  and  by  judicial  decree,  or  by  such  change 
in  the  condition  of  one  of  the  parties  as  disables  him  to  perform  his  part 
of  the  duty.  It  may  also  be  dissolved  by  operation  of  law,  by  reason  of 
war  between  the  governments  to  which  the  partners  respectively  belong, 
so  as  to  render  the  business  carried  on  by  the  association  impracticable 
and  unlawful. 

28.  What  is  the  rule  as  to  dissolution  by  the  voluntary  act  of  the  par- 
ties?—53 

The  established  principle  is,  that,  if  the  partnership  be  for  an  indefi- 
nite period,  any  partner  may  withdraw  at  a  moment's  notice,  when  he 
pleases,  and  dissolve  the  partnership.  The  civil  law  contains  the  same 
rule  on  the  subject.  The  existence  of  engagements  with  third  persons 
does  not  prevent  the  dissolution  by  the  act  of  the  parties,  or  either  of  them, 
though  those  engagements  will  not  be  affected.  But  if  the  partners  have 
formed  a  partnership  by  articles,  for  a  definite  period,  in  that  case  it  is 
said,  that  it  cannot  be  dissolved  without  mutual  consent  before  the  period 
arrives.  This  is  the  assumed  principal  of  law  by  Lord  Eldon,  in  Peacock 
v.  Peacock,  (16  Vesey,  56,)  and  in  Crawshay  v.  Haute,  (1  Swanst.  Rep. 
495.)  In  New  York  it  has  been  held,  that  the  voluntary  assignment  by  one 
partner,  of  all  his  interest  in  the  concern,  dissolved  the  partnership,  though 
it  was  stipulated  in  the  articles,  that  the  partnership  was  to  continue  until 
two  of  the  partners  should  demand  a  dissolution,  and  the  other  partners 
wished  to  continue  the  partnership. — 17  John's  Rep.  525,  19  id.  538. 

29.  What  effect  has  the  death  of  a  partner? — 56 

It  is  ipso  facto  a  dissolution  of  the  partnership,  however  numerous 
the  association  may  be. 

30.  What  is  the  effect  of  insanity  ? — 58 

It  does  not  ipso  facto  work  a  dissolution  of  the  partnership.  It  de- 
pends upon  circumstances  under  the  sound  discretion  of  the  court  of 
chancery- 


LEG.  XLIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  127 

31.  What  is  the  effect  of  the  bankruptcy  of  a  partner? — 58 

Bankruptcy  or  insolvency,  either  of  the  whole  of  the  partnership,  or 
of  an  individual  member,  dissolves  the  partnership.  A  bonafide  voluntary 
assignment  by  a  partner  of  all  his  interest  in  the  partnership 'stock,  has  the 
same  effect.  The  dissolution  takes  place,  and  the  joint  tenancy  is  sever- 
ed, from  the  time  that  the  partner,  against  whom  the  commission  issues, 
is  adjudged  a  bankrupt,  and  the  dissolution  relates  back  to  the  act  of 
bankruptcy. 

32.  What  are  the  consequences  of  a  dissolution  of  a  partnership  ?  — 62 

When  a  partnership  is  actually  ended  by  death,  notice,  or  other  ef- 
fectual mode,  no  person  can  make  use  of  the  joint  property  in  the  way  of 
trade,  or  inconsistently  with  the  purpose  of  settling  the  affairs  of  the  part- 
nership, and  winding  up  the  concern.  The  power  of  one  partner  to  bind 
the  firm,  ceases  immediately  upon  its  dissolution  ;  and  the  partners  from 
that  time,  become  distinct  persons,  and  tenants  in  common  of  the  joint 
stock.  One  partner  cannot  endorse  bills  and  notes  previously  given  to  the 
firm,  nor  accept  a  bill  previously  drawn  on  it,  so  as  to  bind  it.  A  dissolu- 
tion, is  in  some  respects,  prospective  only,  and  either  of  the  former  partners 
can  receive  payment  of  debts  due  to  the  firm,  and  give  a  release.  On  a 
dissolution  by  death,  the  surviving  partner  settles  the  affairs  of  the  con- 
cern. The  good  will  of  a  trade  is  not  partnership  stock.  It  has  been 
decided  to  be  the  right  of  the  survivor. 
» 

33.  What  is  the  rule  as  to  the  payment  of  debts  ? — 65 

That  partnership  debts  must  be  paid  out  of  partnership  estate,  and 
private  and  separate  debts  out  of  the  private  and  separate  estate  of  the  in- 
dividual partner.  If  the  partnership  creditors  cannot  obtain  payment  out 
of  the  partnership  estate,  they  cannot  resort  to  the  private  and  separate 
estate,  until  private  and  separate  creditors  are  satisfied  ;  nor  have  the 
creditors  of  the  individual  partners  any  claim  upon  the  partnership  prop- 
erty, until  all  the  partnership  creditors  are  satisfied.  The  basis  of  the 
general  rule  is,  that  the  funds  are  to  be  liable  on  which  the  credit  was 
given. 

34.  What  is  the  rule  as  to  notice  of  the  dissolution  1 — 66 

To  render  the  dissolution  safe  and  effectual,  there  must  be  due  notice 
given  of  it  to  the  world  ;  and  a  firm  may  be  bound,  after  the  dissolution  of 
the  partnership,  by  a  contract  made  by  one  partner  in  the  usual  course  of 
business,  and  in  the  name  of  the  firm,  with  a  person  who  contracted  on 
the  faith  of  the  partnership,  and  had  no  notice  of  the  dissolution.  What 
shall  be  a  sufficient  implied  notice  has  been  a  vexed  question  in  the  books. 
A  notice  in  one  of  the  public  and  regular  newspapers  of  the  city  or  county 
where  the  partnership  business  was  carried  on,  is  the  usual  mode  of  giv- 
ing information,  and  may,  in  ordinary  cases,  be  quite  sufficient.  As  to 
persons  who  have  been  previously  dealing  with  the  firm,  it  is  requisite 
that  actual  notice  be  brought  home  to  the  creditor,  or,  at  least,  that  it  be 


128  KENT'S  COMMENTARIES,  [VOL.  in. 

given  under  circumstances  from  which  actual  notice  may  be  inferred.  If 
the  facts  are  all  found  or  ascertained,  the  reasonableness  of  notice  may  be 
a  question  of  law  for  the  court,  but  generally  it  will  be  a  mixed  question 
of  law  and  fact.  When  a  single  partner  retires  from  the  firm,  the  same 
notice  is  requisite,  and  if  due  notice  be  given,  yet,  if  the  retiring  partner 
willingly  suffers  his  name  to  continue  in  the  firm,  he  will  still  be  holden. 
A  dormant  partner  may  withdraw  without  giving  public  notice. 


LECTURE    XLIV. 
OF  NEGOTIABLE  PAPER. 

1 .  What  is  a  bill  of  exchange  ? — 74 

It  is  a  written  request  by  one  person  to  another,  for  the  payment  of 
money,  absolutely  and  all  events.  If  A.,  living  in  New  York,  wishes  to 
receive  $1000,  which  await  his  order  in  the  hands  of  B.,  in  London  ;  he 
applies  to  C.,  going  from  New  York  to  London,  to  pay  him  $1000,  and 
take  his  draft  on  B.,  for  that  sum  payable  at  sight. 

2.  By  what  terms  are  the  parties  known  in  law  ? — 75 

A.,  who  draws  the  bill,  is  called  the  drawer.  B.,  to  whom  it  is  addres- 
sed, is  called  the  drawee,  and,  on  acceptance,  becomes  the  acceptor.  C., 
to  whom  the  bill  is  made  payable,  is  called  the  payee.  As  the  bill  is  made 
payable  to  C-,  or  his  order,  he  may,  by  endorsement,  direct  the  bill  to  be ' 
paid  to  D.,  and,  in  that  case,  C.  becomes  the  endorser,  and  D.,  to  whom 
the  bill  is  endorsed,  is  called  the  endorsee,  or  holder. 

3.  What  is  the  character  of  a  check  ? — 75 

It  is,  in  form  and  effect,  a  bill  of  exchange.  It  is  not  a  direct  prom- 
ise by  the  drawer  to  pay,  but  it  is  an  undertaking,  on  his  part,  that  the 
drawee  shall  accept  and  pay,  and  the  drawer  is  answerable  only  in  the 
event  of  the  failure  of  the  drawee  to  pay.  A  check  payable  to  bearer 
passes  by  delivery,  and  the  bearer  may  sue  on  it  as  on  an  inland  bill  of 
exchange. 

4.  What  are  the  principal  requisites  of  a  bill  of  exchange  ? — 7.5 

It  is  not  confined  to  any  set  form  of  words.  A  promise  to  deliver,  or 
to  be  accountable,  or  to  be  responsible  for  so  much  money,  is  a  good  bill 
or  note  ;  but  it  must  be  exclusively  and  absolutely  for  the  payment  of 
money.  In  England,  negotiable  paper  must  be  for  the  payment  of  money 


LEG.  XLIV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  129 

in  specie,  and  not  in  bank  notes.  In  this  country  it  has  been  held,  that  a 
note  payable  in  bank  bills  was  a  good  negotiable  note  within  the  statute, 
if  confined  to  a  species  of  paper  universally  current  as  cash.  But  the 
doctrine  of  these  cases  has  been  met  and  denied,  and  I  think  the  weight 
of  argument  is  against  them,  and  in  favour  of  the  English  rule.  The 
payment  must  not  rest  upon  any  contingency,  except  the  failure  of  the 
general  personal  credit  of  the  person  drawing  or  negotiating  the  bill.  It 
is  not  necessary  that  the  note  should  be  made  at  home.  Foreign,  as  well 
as  inland  notes  are  negotiable.  The  instrument  must  be  made  payable  to 
the  payee,  and  to  his  order  or  assigns,  or  to  bearer,  in  order  to  render  it 
negotiable.  It  must  have  negotiable  words  on  its  face,  showing  it  to  have 
been  the  intention  of  the  parties  to  give  it  a  transferable  quality.  Without 
them  it  is  a  valid  instrument  as  between  the  parties,  and  entitled  to  the 
three  days  of  grace.  The  words  value  received  though  usually  inserted, 
are  unnecessary.  Nor  is  it  necessary  that  the  maker  should  subscribe 
his  name  at  the  bottom  of  the  note  ;  and  it  is  sufficient  if  the  marker's 
name  be  on  any  part  of  it,  as  if  it  should  run,  I,  A-  5.,  promise  to  pay 
C.  D.,  or  order,  one  hundred  dollars.  A  note  payable  to  a  fictitious  person 
may  be  sued  on,  by  an  innocent  endorsee,  as  a  note  payable  to  bearer. 

5.  What  are  the  principal  rights  of  the  holder  of  a  bill  or  note  1 — 79 

Possession  is  prima  facie  evidence  of  property  in  negotiable  paper, 
payable  to  bearer,  or  endorsed  in  blank,  and  such  a  bonafide  holder  can 
recover  upon  the  paper,  though  it  came  to  him  from  a  person  who  had  sto- 
len or  robbed  it  from  the  true  owner,  provided  he  took  it  innocently,  in 
the  course  of  trade,  for  a  valuable  consideration.  There  are  but  two  cases 
in  which  a  bill  or  note  is  void  in  the  hands  of  an  innocent  endorsee  for 
a  valuable  consideration;  and  these  cases  are,  when  the  consideration  in 
the  instrument  is  money  won  at  play,  or  it  be  given  for  a  usurious  debt. 

6.  Within  what  time  must  a  bill  be  presented  for  acceptance  ? — 82 

There  is  no  precise  time  fixed  by  law  in  which  bills  payable  at  sight, 
or  by  a  given  time,  must  be  presented  to  the  drawee  for  acceptance.  The 
holder  need  not  take  the  earliest  opportunity.  A  bill  payable  at  a  given 
time  after  date,  need  not  be  presented  for  acceptance  before  the  day  of 
payment ;  but  if  presented,  and  acceptance  is  refused,  it  is  dishonoured, 
and  notice  must  then  be  given  to  the  drawer.  A  bill  payable  sixty  days 
after  sight,  means  sixty  days  after  acceptance,  and  such  a  bill,  as  well  as 
a  bill  payable  on  demand,  must  be  presented  in  a  reasonable  time,  or  the 
holder  will  have  to  bear  the  loss  proceeding  from  his  default. 

7.  How  must  the  acceptance  be  made  ? — 83 

It  may  be  by  parol,  or  in  writing,  and  general  or  special.  Though  a 
bill  comes  into  the  hands  of  a  person  with  a  parol  acceptance,  and  he 
•takes  it  in  ignorance  of  such  an  acceptance,  he  may  avail  himself  of  it 
afterwards.  If  the  acceptance  be  special,  it  binds  the  acceptor  sub  modo, 
and  according  to  the  acceptance.  A  parol  promise  to  accept  a  bill  already 
17 


KENT'S  COMMENTARIES,  [VOL.  m, 

drawn,  or  thereafter  to  be  drawn,  isbinding  if  the  bill  be  taken  in  consid- 
reation  of  promise.  Every  act  giving  credit  to  the  bill  amounts  to  an  ac- 
ceptance. The  acceptance  may  be  impliedly  as  well  as  expressly  given. 
It  may  be  inferred  from  the  act  of  the  drawee,  in  keeping  the  bill  a  great 
length  of  time,  contrary  to  the  usual  mode  of  dealing. 

8.  What  is  the  effect  of  a  conditional  acceptance  ?—  84 


r*™  K  not  bomld  t0  rCCeive  an?  accePta»ce  varying  from  the 
terms  of  the  bill,  but  if  he  does  receive  it,  the  acceptor  is  not  liable  for 
more  than  he  has  undertaken.  If  a  bill  be  accepted  payable  at  a  particu- 
lar place,  the  holder  is  bound  to  make  demand  at  that  place. 

9.  What  are  the  obligations  of  the  acceptor  of  a  bill  ?  _  86 

The  acceptance  renders  him  the  principal  debtor,  and  the  drawer  the 
surety  and  nothing  will  discharge  the  acceptor  but  payment  or  release. 
He  is  bound,  though  he  accepted  without  consideration,  and  for  the  sole 
accommodation  of  the  drawer.  Accommodation  paper  is  now  governed 
by  the  same  rules  as  other  paper.  These  are  the  strict  obligations  of  the 
acceptor  in  relation  to  the  other  parties  to  the  bill,  and  they  do  not  apply 
in  all  their  extent  as  between  the  drawer  and  the  party  who  endorses  or 
lends  his  name  to  the  bill  as  surety  for  the  accommodation  of  the  drawer. 

10.  What  is  an  acceptance  supra  protest  ?—87 

It  is  where  a  third  person,  after  protest  for  non-acceptance  by  the 
drawee,  intervenes,  and  becomes  a  party  to  the  bill,  in  a  collateral  way  by 
accepting  and  paying  the  bill  for  the  honour  of  the  drawer,  or  of  a  par- 
ticular endorser. 

__87    What  are  the  obligations  and  rights  of  the  acceptor  supra  protest  ? 

He  subjects  himself  to  the  same  obligations  as  if  the  bill  had  been 
directed  to  him  He  has  his  remedy  against  the  person  for  whose  honour 
he  accepted,  and  against  all  the  parties  who  stand  prior  to  that  person  If 
he  takes  up  the  bill  for  the  honour  of  the  endorser,  he  stands  in  the  light 
of  an  endorsee  paying  for  the  value  of  the  bill,  and  has  the  same  remedtes 
to  which  an  endorsee  would  be  entitled  against  all  prior  parties  There 
can  be  no  other  acceptor  after  a  general  acceptance  by  the  drawee  A 
third  person  may  become  liable  on  his  collateral  undertaking,  as  auaranty- 
mg  the  credit  of  the  drawee,  but  he  will  not  be  liable  as  acceptor  It  is 
said,  however,  that  when  the  bill  has  been  accepted,  supra  protest,  for  the 
honour  of  one  party  to  the  bill,  it  may,  by  another  individual,  be  accepted 
supra  protest,  for  the  honour  of  another.  The  holder  is  not  bound  to  take 
an  acceptance,  supra  protest,  but  he  would  be  bound  to  accept  an  offer  to 
pay  supra  protest.  The  protest  is  necessary,  and  should  precede  the 
collateral  acceptance  or  payment  ;  and  if  the  bill,  on  its  face,  directs  a 
resort  to  a  third  person,  in  case  of  refusal  by  the  drawee,  such  direction 
becomes  a  part  of  the  contract. 


JLEC.  XLIV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  131 

11.  What  is  the  rule  as  to  the  transfer  of  bills  by  endorsement  ? — 88 

A  valid  transfer  may  be  made  by  the  payee,  or  his  agent.  In  case 
of  a  bill  made  or  endorsed  to  a  feme  sole,  who  afterwards  marries,  the  right 
to  endorse  it  belongs  to  her  husband.  So,  the  assignee  of  an  insolvent 
payee,  or  the  executor  or  administrator  of  a  deceased  payee,  are  entitled 
to  endorse  the  paper.  And  if  a  bill  be  made  payable  to  a  mercantile 
house  consisting  of  several  partners,  an  endorsement  by  one  of  them  is 
deemed  the  act  of  the  firm.  If  the  bill  be  made  payable  to  A.,  for  the  use 
of  B.,  the  legal  title  is  in  A.,  and  he  must  endorse  it.  A  bill  cannot  be 
endorsed  for  a  part  only  of  its  contents,  unless  the  residue  has  been  ex- 
tinguished. 

12.  What  is  the  effect  of  a  blank  endorsement  1 — 89 

A  note  endorsed  in  blank  is  .like  one  payable  to  bearer,  and  passes 
by  delivery,  and  the  holder  may  constitute  himself,  or  any  other  person, 
assignee  of  the  bill.  Even  a  bond  payable  to  bearer,  has  been  held  to 
pass  by  delivery,  in  the  same  manner  as  a  bank-note  payable  to  bearer,  or 
a  bill  of  exchange  endorsed  in  blank.  The  holder  may  strike  out  the 
endorsement  to  him,  though  in  full,  and  all  prior  endorsements  in  blank, 
except  the  first,  and  charge  the  payee  or  maker. 

13.  How  may  the  negotiability  of  a  bill,  originally  so,  be  stopped  ?— 90 

By  a  special  endorsement  by  the  payee,  but  no  subsequent  endorsee 
can  restrain  the  negotiability  of  the  bill.  The  first  endorser  is  liable  to 
every  subsequent  bonajlde  holder,  even  though  the  bill  or  note  be  forged, 
or  fraudulently  circulated. 

14.  What  if  a  blank  note  or  check  be  endorsed  ?— 90 

It  will  bind  the  endorser  to  any  sum,  or  time  of  payment,  which  the 
person  to  whom  he  intrusts  the  paper,  chooses  to  insert  in  it.  This  only 
applies  to  the  case  in  which  the  body  of  the  instrument  is  left  blank. 

15.  What  is  the  rule  where  negotiable  paper  is  taken  after  it  is  due  ? — 91 

The  presumption  is  against  the  validity  of  the  demand,  and  the  pur- 
chaser takes  it  at  his  peril,  and  subject  to  every  defence  existing  against 
it  before  it  was  negotiated. 

16.  When  is  a  note,  payable  on  demand,  deemed  out  of  time  ? — 91 

When  the  facts  are  ascertained,  the  reasonableness  of  time  is  a 
matter  of  law,  and  every  case  will  depend  on  its  circumstances.  Eighteen 
months,  eight  months,  seven  months,  five  months,  even  two  and  a  half, 
when  unexplained  by  circumstances,  have  been  held  an  unreasonable 
delay  ;  and  if  the  demand  be  not  made  in  a  reasonable  time  by  the  holder, 
the  endorser  is  discharged. 


132  KENT'S  COMMENTARIES,  [VOL.  in. 

17.  How  must  the  demand  for  acceptance,  and  protest  of  a  bill  be 
made  ?— 93 

It  is  usually  made  by  a  notary,  and  in  case  of  non-acceptance  he 
protests  it,  and  this  notarial  protest  receives  credit  in  all  courts  and  places 
by  the  law  and  usages  of  merchants,  without  any  auxiliary  evidence;  and 
it  is  a  requisite  step,  by  the  custom  of  merchants,  in  the  case  of  a  foreign 
bill,  and  must  be  made  promptly  upon  refusal.  It  must  be  made  at  the 
time,  in  the  manner,  and  by  the  persons  prescribed,  in  the  place  where  the 
bill  was  payable.  Protest  of  inland  bills  is  not  generally  deemed  neces- 
sary. Bills  drawn  in  one  state,  on  persons  living  in  another  state,  are  to 
be  treated  as  foreign  bills. — (2  Peters'  U.  S.  Rep.  170.) 

18.  What  is  the  rale  as  to  notice  of  non-acceptance  \ — 94 

After  the  protest  of  non-acceptance,  immediate  notice  must  be  given 
to  the  drawer  and  endorser,  in  order  to  fix  them,  and  the  omission  would 
not  be  cured  by  the  bill  being  presented  for  payment,  and  subsequent  no- 
tice of  non-payment,  as  well  as  non-acceptance.  The  drawer  or  endor- 
ser may  be  sued  forthwith  upon  the  protest  for  non-acceptance,  without 
waiting  until  the  bill  be  presented  for  payment,  and  refused. 

19.  How  must  demand  of  payment  be  made  ?— 95 

It  must  be  made  when  the  bill  falls  due,  by  the  holder  or  his  agent 
upon  the  acceptor,  at  the  place  appointed  for  payment,  or  at  his  house  or 
residence,  or  upon  him  personally  if  no  particular  place  be  appointed,  and 
it  cannot  be  made  by  letter  through  the  post  office.  The  general  principle 
is,  that  due  diligence  must  be  used  to  find  out  the  party,  and  make  demand  ; 
and  the  inquiry  will  always  be,  whether,  under  the  circumstances  of  the 
case,  due  diligence  has  been  used.  If  the  party  has  absconded,  that  will 
as  a  general  rule,  excuse  the  demand.  If  he  has  changed  his  residence 
to  some  other  place,  within  the  same  state  or  jurisdiction,  the  holder  must 
make  endeavours  to  find  it,  and  make  the  demand  there.  If  the  person 
at  whose  house  the  note  or  bill  is  made  payable,  be  the  holder  of  the  pa- 
per, it  is  sufficient  for  the  holder  to  examine  the  accounts,  and  ascertain 
that  the  party  who  is  to  pay  has  no  funds  deposited. 

20.  What  is  the  effect  of  the  addition  of  memoranda  to  a  bill  or  note, 
designating  the  place  of  payment? — 98 

There  has  been  much  litigation  and  difficulty  in  the  cases.  It  is  sta- 
ted as  a  general  rule,  that  a  memorandum  upon  a  note,  as  to  where  it  should 
be  payable,  was  no  part  of  it ;  and  in  Exon  v.  Russell,  (4  Maule  $  Selw. 
505.)  such  a  memorandum  on  the  bottom  of  a  note,  was  held  to  be  no  part 
of  it.  On  the  other  hand,  in  Cowie  v.  Halsall,  (4  Barnw.  $  Aid.  197,) 
after  a  bill  had  been  accepted  generally,  the  drawer,  without  the  consent 
of  the  acceptor,  added  a  place  of  payment,  and  it  was  held,  that  the  addi- 
tion was  a  material  variation,  and  discharged  the  acceptor. 

21.  What  if  a  bill  drawn  generally,  be  accepted  specially  ? — 99 


LEC.  XLIV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  133 

It  is  a  qualified  acceptance  which  the  holder  is  not  bound  to  take  ; 
but  if  he  does  take  it,  the  demand  must  be  made  at  the  place  appointed  and 
not  elsewhere. 

22.  What  is  the  rule  as  to  the  three  days  of  grace  ?— 100 

That  they  apply  equally,  according  to  the  custom  of  merchants,  to 
foreign  and  inland  bills  and  to  promissory  notes,  and  as  between  the  en- 
dorser and  the  endorsee  of  a  negotiable  note  ;  and  the  acceptor  has  within 
a  reasonable  time  of  the  end  of  business,  or  bank  hours,  of  third  day  of 
grace,  (being  the  third  day  after  the  paper  falls  due,)  to  pay.  The  three 
days  of  grace  apply  equally  to  bills  payable  at  sight ;  but  a  bill  or  note 
payable  on  demand,  or  where  no  time  of  payment  is  expressed,  is  payable 
immediately  on  presentment,  and  is  not  entitled  to  the  three  days  of  grace. 

23.  What  steps  are  requisite  to  fix  the  drawer  and  endorser  of  a  bill  or 
check?— 104 

The  holder  must  not  only  show  a  demand,  or  due  diligence  to  get 
the  money  of  the  drawee  of  the  bill  or  check,  and  of  the  maker  of  the 
note,  but  he  must  give  reasonable  notice  of  their  default  to  the  drawer  and 
endorsers,  to  entitle  himself  to  a  suit  against  them.  Notice  to  one  of  sev- 
eral partners,  or  to  one  of  several  joint  drawers  or  endorsers,  is  notice  to 
them  all.  The  question  of  reasonable  notice  is  usually  compounded  of 
law  and  fact,  and  proper  for  the  decision  of  a  jury,  under  the  advice  and 
direction  of  the  court. 

24.  What  is  held  to  be  reasonable  notice  ? — 106 

According  to  the  modern  doctrine,  the  notice  must  be  given  by  the 
first  direct  and  regular  conveyance.  This  means,  the  first  mail  that  goes 
after  the  day  next  to  the  third  day  of  grace.  Reasonable  diligence  and 
attention  is  all  that  the  law  enacts  ;  and  it  seems  to  be  now  settled,  that 
each  party  into  whose  hands  a  dishonoured  bill  may  pass,  shall  be  allow- 
ed one  entire  day  for  the  purpose  of  giving  notice.  It  is  not  necessary 
to  send  by  the  public  mail.  The  notice  may  be  sent  by  a  private  convey- 
ance, or  special  messenger,  and  it  would  be  good  notice,  though  it  should 
happen  to  arrive  a  little  behind  the  mail.  The  notice,  in  all  cases,  is  good, 
if  left  at  the  dwelling-house  of  the  party,  in  a  way  reasonably  calculated 
to  bring  the  knowledge  of  it  home  to  him ;  and  if  the  house  be  shut  up  by 
a  temporary  absence,  still  notice  may  be  left  there.  If  the  parties  live  in 
different  towns,  the  letter  must  be  forwarded  to  the  post-office  nearest  to 
the  party. 

25.  What  is  necessary  to  be  expressed  in  the  notice  ? — 108 

It  is  sufficient  that  it  state  the  fact  of  non-payment,  and  it  is  not  ne- 
necessary  to  state  expressly,  it  is  justly  implied,  that  the  holder  looks  to 
the  endorser.  It  is  sufficient  for  the  agent  to  give  notice  to  his  principal 
of  the  dishonour  of  a  bill,  and  it  then  becomes  necessary  for  the  principal 


134  •     KENT'S  COMMENTARIES,  [VOL.  in. 

\ 

to  give  the  requisite  notice,  with  due  diligence,  to  the  parties  to  be  fixed. 
The  drawer  or  endorser,  to  be  charged  on  non-acceptance  or  non-pay- 
ment, is  entitled  to  call  for  the  protest,  and  the  identical  bill,  or  number  of 
the  set  protested,  before  he  is  bound  to  pay. 

26.  In  what  cases  is  notice  not  required  ? — 110 

If  the  drawee  refuse  to  accept,  because  he  has  no  effects  of  the 
drawer  in  his  hands,  notice  to  the  drawer  is  not  necessary.  This  excep- 
tion to  the  general  rule,  is  confined  strictly  to  want  of  effects  and  to  cases 
in  which  the  drawer  had  no  right  to  expect  that  his  bill  would  be  honour- 
ed. The  exception  applies  only  to  the  drawer.  Neither  the  insolvency 
of  the  drawer,  or  drawee,  or  acceptor,  or  the  fact  that  the  drawee  had  ab- 
sconded does  away  with  the  necessity  of  demand  of  payment,  and  notice 
to  the  drawer  and  endorser.  If  a  bank  check  be  taken  in  the  ordinary 
course  of  business,  it  is  not  an  absolute  payment,  but  only  the  means  to  pro- 
cure the  money,  and  the  holder  is  bound  to  present  it  for  pa3rment  with 
ordinary  diligence,  and  the  next  day  will  be  in  season.  But  if  the  bank  be 
totally  prohibited,  by  process  of  law,  from  the  exercise  of  its  functions, 
before  the  check  can,  with  due  diligence,  be  presented,  no  demand  need 
be  made,  or  notice  given  ;  and  the  holder  may  waive  the  check  altogether, 
and  resort  to  his  original  demand.  So,  if  the  maker  of  the  check  has  no 
funds  at  the  bank  at  the  date  of  the  check,  it  need  not  be  presented  for 
payment  previous  to  a  suit  upon  it. 

27.  What  if  delay  be  given  to  the  drawee  of  a  bill  or  maker  of  a  note  ? 
—Ill 

It  will  discharge  the  other  parties,  but  the  agreement  for  delay  must 
be  one  having  a  sufficient  consideration,  and  binding  in  law  upon  the  par- 
ties ;  mere  indulgence  will  work  no  prejudice.  Simply  forbearing  to  sue 
the  acceptor,  or  taking  collateral  security  from  him,  is  no  discharge  ;  but 
giving  him  new  credit  and  time,  or  accepting  a  composition  in  discharge 
of  the  acceptor,  will  produce  that  result.  The  principal  is,  that  the  drawer 
and  endorser  are  in  the  light  of  sureties  for  the  acceptor,  and  the  holder 
must  do  nothing  to  impair  the  right  which  they  have  to  resort  by  suit  to  the 
acceptor  for  indemnity,  or  which  would  amount  to  a  breach  of  faith  in  him 
towards  the  acceptor.  4 

28.  What  is  the  above  rule  understood  to  require  ? — 112 

That  the  holder  shall  riot  so  deal  with  the  acceptor  of  the  bill,  or 
maker  of  the  note,  by  giving  time,  or  compounding,  or  giving  credit,  as  to 
prejudice  the  right  of  the  other  parties  to  the  bill,  without  their  assent. 
The  holder  may  give  time  to  an  immediate  endorser,  and  proceed  against 
the  parties  behind  him.  A  prior  party  to  a  bill  is  not  discharged  by  a 
release  of  a  subsequent  party.  But  the  holder  cannot  reverse  this  order. 

29.  What  acts  of  the  endorser  or  drawer  will  amount  to  a  waver  of 
notice? — 113 


LEG.    XHV.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  135 

A  subsequent  promise  to  pay,  or  the  taking  of  collateral  security. 

30.  What  if  an  endorser  comes  again  in  possession  of  the  bill? — 114 

He  will  be  regarded  prima  facie  as  the  owner,  and  may  sue  and  re- 
cover, though  there  be  on  it  subsequent  endorsements. 

31.  What  will  discharge  the  acceptor? — 114 

Nothing  short  of  the  statute  of  limitations,  or  payment,  or  a  release, 
or  an  express  declaration  of  the  holder.  He  is  bound,  like  the  maker  of 
a  note,  as  a  principal  debtor.  His  acceptance  is  evidence  that  the  value 
'of  the  bill  was  in  his  hands,  or  had  been  received  by  him  from  the  drawer. 
He  is  liable  to  the  payee,  to  the  drawer,  and  to  every  endorser.  He  is 
liable  to  an  innocent  holder,  though  the  drawer's  hand  be  forged,  and 
in  the  suit  against  him  it  is  not  necessary  to  prove  any  hand  but  that  of 
the  first  endorser. 

32.  What  is  the  usual  course,  in  Europe,  pursued  by  the  holder  of  a 
protested  bill  in  order  to  procure  indemnity? — 115 

The  general  law  merchant  authorizes  the  holder  to  redraw  from  the 
place  where  the  bill  was  payable,  on  the  drawer  or  endorser,  in  order  to 
reimburse  himself  for  the  principal  of  the  bill  protested,  the  contingent 
expenses  attending  it,  and  the  new  exchange  which  he  pays. 

33.  What  is  the  rule  in  this  country  ?  — 117 

The  proper  rule  in  cases  of  debt  payable  in  a  foreign  country,  in 
England,  for  instance,  and  sued  in  the  United  States,  is  to  allow  that  sum 
in  the  currency  of  the  country  which  approximates  most  nearly  to  the 
amount  to  which  the  party  is  entitled  in  the  country  where  the  debt  was 
payable,  and  calculated  by  the  established  par  of  exchange ;  and  in  the 
United  States,  the  pound  sterling  is  valued  at  $4,80.  But  the  creditor  is 
also  entitled  to  have  an  amount  equal  to  what  he  must  pay,  in  order  to 
remit  it  to  the  place  where  it  was  payable.  He  ought  to  have  just  as  much 
allowed  him  where  he  sues,  as  he  would  have  had  if  the  contract  had 
been  duly  performed. 

34.  What  is  a  mercantile  guaranty  ? — 121  * 

It  is  a  promise  to  answer  for  the  payment  of  some  debt  or  duty,  in 
case  of  the  failure  of  another  person,  who  is  in  the  first  instance  liable. 

35.  What  are  the  legal  rules  governing  a  mercantile  guaranty? — 121 

The  English  statute  of  frauds,  which  has  been  adopted  throughout  this 
country,  requires,  that  "  upon  any  special  promise  to  answer  for  the  debt, 
default,  or  miscarriage  of  another  person,  the  agreement,  or  some  memo- 
randum thereof,  must  be  in  writing,  and  signed  by  the  party,  to  be  charged 
therewith,  or  some  other  person  thereunto  by  him  lawfully  authorized." 
An  agreement  to  become  a  guarantor,  is  within  the  statute  ;  and  if  it  be  a 


136  KENT'S  COMMENTARIES,  [VOL.  in. 

guaranty  for  the  subsisting  debt  or  engagement  of  another  person,  not  only 
the  engagement,  but  the  consideration  must  be  in  writing. 

36.  What  are  the  rights  and  duties  of  the  respective  parties  to  a  mer- 
cantile guaranty  ? — 123 

The  doctrine  in  the  case  of  negotiable  paper,  as  to  demand  and  no- 
tice, has  a  feeble  and  qualified  application  to  the  guarantor.  Thus  it  has 
been  held,  that  the  guarantor  of  a  note  could  be  discharged  by  the  laches 
of  the  holder,  as  by  neglect  to  make  demand  of  payment  of  the  maker, 
and  to  give  notice  of  non-payment  to  the  guarantor,  provided  the  maker 
was  solvent  when  the  note  fell  due,  and  became  insolvent  afterwards. 
And  in  the  case  of  the  absolute  guaranty  of  the  payment  of  a  note,  no 
demand  or  notice  is  requisite  to  fix  the  guarantor. a 


LECTURE    XLV. 
OF  THE  TITLE  TO  MERCHANT  VESSELS. 

1.  What  are  the  requisites  to  a  title  to  a  ship  ? — 130 

A  bill  of  sale  is  the  true  and  proper  muniment  of  title,  and  one  which 
the  maritime  courts  of  all  nations  will  look  for,  and,  in  their  ordinary  prac- 
tice, require.  In  Scotland,  a  written  conveyance  of  property  in  ships,  has, 
by  custom,  become  essential;  and,  in  England,  it  is  made  absolutely 
necessary  by  statute,  as  to  British  subjects.  Possession  of  a  ship,  and 
acts  of  ownership,  will,  in  this,  as  in  other  cases  of  property,  be  pre- 
sumptive evidence  of  title,  without  the  aid  of  documentary  proof,  and  will 
stand  good  until  that  presumption  be  destroyed  by  contrary  proof;  and 
a  sale  and  delivery  of  a  ship,  without  a  bill  of  sale,  or  instrument,  will  be 
good  at  law,  as  between  the  parties.  Upon  the  sale  of  a  ship,  in  port, 
delivery  of  possession  is  necessary  to  make  the  title  perfect.  If  the  buyer 
suffers  the  seller  to  remain  in  possession,  and  act  as  owner,  and  the  seller 
should  become  bankrupt,  the  property  would  be  liable  to  his  creditors,  and, 
in  some  cases,  also  to  judgment  creditors  on  execution.  The  same  rule 
exists  in  the  case  of  the  mortgage  of  the  ship  ;  but  where  a  sale  is  by  a  part 
owner,  it  is  similar  to  the  sale  of  a  ship  at  sea,  and  actual  delivery  can 
not  take  place.  Delivery  of  the  instruments  of  title  will  be  sufficient, 
unless  the  part  owner  be  himself  in  actual  possession.  If  the  ship  be 
sold  while  abroad,  or  at  sea,  a  delivery  of  the  grand  bill  of  sale,  and  other 
documents,  transfers  the  property,  as  in  the  case  of  the  delivery  of  the 
key  of  a  warehouse. 


LEG.  XLV.]      REDUCED  TO  QUESTIONS  AND  ANSWERS.  137 

2.  What  is  understood  by  the  grand  bill  of  sale  ?  — 133 

The  instrument  whereby  the  ship  was  originally  transferred  from  the 
builder  to  the  owner,  or  first  purchaser. 

3.  What  will  constitute  a  person  owner  for  the  purpose  of  charging  him 
for  necessaries  and  repairs  ? — 133 

The  ownership,  in  relation  to  this  subject,  is  not  determined  by  the 
register,  and  the  true  question,  in  matters  relating  to  repairs,  is,  upon  whose 
credit  was  the  work  done  ?  Nor  is  a  regular  bill  of  sale  of  property  essen- 
tial to  exempt  the  former  owner  from  responsibility  for  supplies  furnished. 
But  where  the  contract  of  sale  is  made,  and  the  possession  delivered,  the 
circumstance  that  the  naked  legal  title  remains  in  the  vendor  for  his  secu- 
rity, does  not  render  him  liable,  as  owner,  on  contracts,  or  for  the  conduct 
of  the  master. 

4.  How  is  the  liability  of  mortgagees  considered? — 134 

It]  has  been  a  disputed  question,  whether  the  mortgagee  of  a  ship, 
before  he  takes  possession,  be  liable  to  the  burdens  and  entitled  to  the 
benefits  belonging  to  the  owner.  In  the  case  of  Chinney  v.  Blackbourne, 
(1  H.  Blacks.,  117,)  it  was  held,  that  the  mortgagor  was  to  be  deemed 
owner,  and  entitled  to  the  freight,  and  liable  for  the  repairs  and  other  ex- 
penses. The  same  decision  was  made  by  the  C.  B.  in  Jackson  v.  Vernon, 
(1  H.  Blacks.,  114.)  But  Lord  Kenyon,  in  Westerdell  v.  Dale,  (17  Term 
Rep.,  306,)  entertained  a  different  opinion,  and  he  considered  the  mortga- 
gee, whether  in  or  out  of  possession,  to  be  entitled  to  freight,  and  bound 
for  the  expenses  of  the  ship.  In  Dean  v.  M'Ghie,  (4  Bingham,  45,)  it  was 
held,  that  on  a  mortgage  of  a  ship,  the  accruing  freight  passed  to  the  mort- 
gagee. The  weight  of  American  authority,  has  been  in  favour  of  the 
position,  that  a  mortgagee  of  a  ship  out  of  possession  is  not  liable  for 
repairs  or  necessaries  furnished.  To  whom  was  the  credit  given,  seems 
to  be  the  ground  on  which  the  question  ought  to  stand.  In  a  case  before 
Lord  Ellenborough,  in  1816,  he  ruled,  that  a  mortgagee,  not  in  posses- 
sion, and  not  known  to  the  plaintiff,  was  not  liable  for  stores  supplied  by 
the  captain's  order. — (1  Starkie's  Rep.,  366.) 

Registered  ownership,  is  prima  facie  evidence  of  liability  for  repairs 
of  a  ship,  but  it  may  be  rebutted  by  showing  that  the  credit  was  given 
elsewhere. 

5.  In  what  cases  is  the  charterer  liable  for  supplies  furnished  the  ship  ? 
—137 

The  question  in  these  cases  is,  whether  the  owner,  by  reason  of  the 
charter  party,  has  divested  himself  of  the  ownership  pro  hoc  vice,  and 
whether  there  has  been  any  direct  contract  between  the  parties,  varying 
the  responsibility. 

In  Vallejo  v.  Wheeler,  (Cowp.  Rep.,  143,)  the  court  proceeded  on  the 
ground,  that  the  charterer  was  owner  pro  hac  vice,  inasmuch  as  he  ap- 
pointed the  master.  The  question  of  responsibility  depends  upon  the  in- 
18 


138  KENT'S  COMMENTARIES,  [VOL.  m. 

quiry,  whether  the  lender  or  hirer,  under  a  charter  party,  be  the  owner  of 
the  ship  for  the  voyage.  If  the  general  owner  retains  the  command  and 
navigation  of  the  ship,  and  contracts  to  carry  a  cargo  on  freight  for  the  voy- 
age, the  charter  party  is  a  mere  affreightment  sounding  in  covenant,  and 
the  freighter  hires  the  possession,  command,  and  navigation  of  the  ship, 
he  becomes  the  owner,  and  is  responsible  for  the  conduct  of  the  master 
and  mariners  ;  and  the  general  owner  has  no  lien  for  freight. 

6.  What  is  necessary  under  the  registry  acts  in  order  to  entitle  a  ves- 
sel to  the  privileges  of  a^  United  States  ship  ? — 141 

No  vessel  is  deemed  a  vessel  of  the  United  States,  nor  entitled  to 
the  privileges  of  one,  unless  registered,  and  wholly  owned  and  command- 
ed by  a  citizen  of  the  United  States.  The  American  owner  in  whole, 
or  in  part,  ceases  to  retain  his  privileges  as  such  owner,  if  he  usally  re- 
sides iu  a  foreign  country,  during  the  continuance  of  such  residence,  un- 
less he  be  a  consul,  or  agent  for,  and  a  partner  in  some  American  house, 
carrying  on  trade  within  the  United  States.  The  register  is  to  be  made 
by  the  collector  of  the  port  to  which  the  vessel  belongs,  or  in  which  it 
shall  be,  and  founded  on  the  oath  of  the  owners,  stating  the  time  and 
place  where  she  was  built,  or  that  she  was  captured  in  war  by  a  citizen, 
as  prize,  and  lawfully  condemned  ;  and  stating  the  owners  and  master,  and 
that  they  are  citizens,  and  that  no  subject  of  a  foreign  power  is,  directly 
or  indirectly  by  way  of  trust,  or  otherwise,  interested  therein.  Previous 
to  the  rigistry,  a  certificate  of  survey  is  to  be  produced,  and  security  giv- 
en, that  the  certificate  of  such  registry  shall  be  solely  used  for  the  ship, 
and  shall  not  be  sold,  lent,  or  otherwise  disposed  of.  If  the  vessel,  or  any 
interest  therein,  be  sold  to  a  foreigner,  and  the  vessel  be  within  the  Uni- 
ted States,  the  certificate  of  the  registry  shall,  within  seven'days  after  the 
sale,  be  delivered  up  to  the  collector  of  the  district,  and  if  the  sale  be 
made  when  the  vessel  is  abroad,  or  at  sea,  the  certificate  is  to  be  deliver- 
ed up  within  eight  days  after  the  master's  arrival  within  the  United  States  ; 
and  if  the  transfer  be  made  to  a  foreigner  in  a  foreign  port,  for  the  pur- 
pose of  evading  the  revenue  laws  of  the  foreign  country,  it  works  a  for- 
feiture of  the  vessel,  unless  the  transfer  be  made  known  within  eight 
days  after  the  return  of  the  vessel,  to  a  port  in  the  United  States,  by  a  de- 
livery of  the  certificate  of  registry  to  the  collector  of  the  port.  So,  if  a 
registered  ship  be  sold,  in  whole  or  in  part,  while  abroad,  to  a  citizen  of 
the  United  States,  the  vessel  on  her  first  arrival,  in  the  United  States  there- 
after, shall  be  entitled  to  all  the  privileges  of  a  ship  of  the  United  States, 
provided  a  new  certificate  of  registry  be  obtained  within  three  days  after 
the  master  makes  his  final  report  upon  her  first  arrival.  If  the  vessel  be 
built  in  the  United  States,  the  ship-carpenter's  certificate  is  requisite  to  ob- 
tain the  register. 

7.  What  form  is  requisite  in  the  transfer  of  American  ships  ? — 143 

There  must  be  some  instrument  in  writing  in  the  nature  of  a  bill  of 
sale,  which  shall  recite  at  length  the  certificate  of  registry,  and  without  it 


LEG.  SLV.]       REDUCED  TO  QUESTIONS  AND  ANSWERS.  139 

the  vessel  is  incapable  of  being  registered  anew.     Upon  every  change  of 
master,  the  owner  must  report  such  change  to  the  collector. 

8.  What  are    the   rules  prescribed  in   regard  to   the  coasting  trade  ? 
—144 

In  order  to  obtain  a  licence  to  carry  on  the  coasting  trade,  or  fisher- 
ies, the  owner,  or  the  ship's  husband,  and  master,  must  give  security  to  the 
United  States,  that  the  vessel  be  not  employed  in  any  trade  whereby  the 
revenue  of  the  United  States  may  be  defrauded  ;  and  the  master  must 
make  oath  that  he  is  a  citizen,  and  that  the  license  shall  not  be  used  for 
any  other  vessel,  or  any  other  employment ;  and  if  the  vessel  be  less  than 
twenty  tons  burthen,  and,  that  she  wholly  the  property  of  a  citizen  of  the 
United  States.  The  collector  thereupon  grants  a  license  to  carry  on  the 
coasting  trade,  or  fishery.  Vessels  engaged  in  such  trade  or  business, 
without  being  enrolled  or  licensed,  or  licensed  only,  as  the  case  may  be, 
shall  pay  alien  duties,  if  in  ballast,  or  laden  with  goods  the  growth  or 
manufacture  of  the  United  States,  and  shall  be  forfeited  if  laden  with  any 
articles  of  foreign  growth  or  manufacture,  or  distilled  spirits. 

9.  In  what  relation  do  part  owners  of  a  ship  stand  towards  each  other  ? 
—151 

As  tenants  in  common.  Each  has  his  distinct,  though  undivided  in- 
terest ;  and  when  one  of  them  is  appointed  to  manage  the  concerns  of  the 
ship  he  is  termed  the  ship's  husband. 

10.  How  is  the  employment  of  the  ship  regulated  ? — 151 

If  there  be  no  certain  agreement  among  the  owners  ;  the  Court  of 
Admiralty,  authorizes  a  majority  in  value  of  the  part  owners,  to  employ 
the  ship  upon  any  probable  adventure,  and,  at  the  same  time,  takes  care  to 
secure  the  interest  of  the  dissenting  minority.  In  such  case,  the  ship 
sails  wholly  at  the  charge  and  risk,  and  for  the  benefit  of  the  majority.  If 
the  part  owners  are  equally  divided  in  respect  to  the  employment  of  the 
ship,  either  party  may  obtain  the  like  security  from  the  other  seeking  to 
employ  her.  The  court  may  decree  a  sale  where  the  parties  are  equally 
divided. 

11.  What  is  the  rule  as  to  the  joint  responsibility  of  part  owners! 
—156 

That  they  are  responsible  in  solido,  as  partners,  for  repairs  and  ne- 
cessary expenses  relating  to  the  ship,  and  incurred  on  the  authority  of  the 
master  or  ship's  husband.  But  where  a  ship  has  been  duly  abandoned  to 
separate  insurers,  they  are  not  responsible  to  each  other  as  partners,  but 
each  one  is  answerable  for  the  previous  expenses  of  the  ship,  ratably  to 
the  extent  of  his  interest  as  an  insurer,  and  no  further. 


140  KENT'S  COMMENTARIES,  [VOL.  HI. 


LECTURE    XLVI. 

OF  THE  PERSONS  EMPLOYED  IN  THE  NAVIGATION 
OF  MERCHANT  SHIPS. 

1.  What  are  the  qualifications  which  the  master  should  possess  ? — 158 

He  must  be  a  person  of  experience  and  practical  skill,  as  well  as 
deeply  initiated  in  the  theory  of  navigation.  He  must  have  the  talent  to 
command  in  the  midst  of  danger,  and  presence  of  mind  to  meet  and  sur- 
mount extraordinary  perils.  He  must  be  able  to  dissipate  fear,  to  calm 
disturbed  minds,  and  to  inspire  confidence,  in  the  breasts  of  all  who  are 
under  his  charge.  He  must  watch  for  the  preservation  of  the  health  and 
comfort  of  the  crew,  as  well  as  for  the  preservation  of  the  ship.  It  is  ne- 
cessary that  he  should  maintain  perfect  order,  and  preserve  the  most  exact 
discipline,  under  the  guidance  of  justice,  moderation,  and  good  sense. 
Charged  frequently  with  the  sale  of  the  cargo,  and  the  re-investment  of 
the  proceeds,  he  must  be  fitted  to  superadd  the  character  of  merchant  to 
that  of  commander  ;  and  he  ought  to  have  a  general  knowledge  of  the 
marine  law,  and  of  the  rights  of  belligerents,  and  the  duties  of  neutrals, 
so  as  not  to  expose  to  unnecessary  hazard  the  persons  and  property  under 
his  protection. 

2.  What  authority  may  the  master  exerise  ? — 161 

As  he  is  the  confidential  agent  of  the  owners,  he  has  an  implied  au- 
thority to  bind  them,  without  their  knowledge,  by  contracts  relative  to  the 
usual  employment  of  the  ship.  He  may,  by  charter-party,  bind  the  ship 
and  freight:  This  he  may  do  in  a  foreign  port  in  the  usual  course  of  the 
ship's  employment ;  and  this  he  may  also  do  at  home,  if  the  owner's  con- 
sent can  be  presumed.  The  ship  and  freight  are,  by  the  marine  law, 
bound  to  the  performance  of  the  contract.  The  master  can  bind  the 
owners,  not  only  in  respect  to  the  usual  employment  of  the  ship,  but  in 
respect  to  the  means  of  employing  her.  His  power  relates  to  the  carriage 
of  goods,  and  the  supplies  requisite  for  the  ship,  and  he  can  bind  the  owner 
personally  as  to  repairs  and  necessaries  for  the  ship.  But  the  supplies 
must  appear  to  be  reasonable,  or  the  money  advanced  for  the  purchase  of 
them  to  have  been  wanting.  The  master  when  abroad,  and  in  the  ab- 
sence of  the  owner,  may  hypothecate  the  ship,  freight,  and  cargo,  to  raise 
money  requisite  to  complete  the  voyage.  He  may,  also,  if  necessary,  in 
the  course  of  the  voyage,  sell  a  part  of  the  cargo,  to  enable  him  to  carry 
on  the  residue. 

3.  What  is  the  law  as  to  the  master's  right  of  lien  on  the  ship? — 165 

It  is  settled  that  the  master  has  no  lien  on  the  ship,  freight,  and  cargo, 
for  any  debt  of  his  own,  as  for  wages,  or  stores  furnished,  or  repairs  done 


LEC.  XLV1.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  141 

at  his  expense,  either  at  home  or  on  the  voyage.  The  captain  is  distin- 
guished from  all  other  persons  belonging  to  the  ship,  and  he  is  considered 
as  contracting  personally  with  the  owners,  while  the  mate  and  mariners 
contract  with  the  master  on  the  credit  of  the  ship.  He  can  hypothecate 
and  create  a  lien  in  favour  of  others,  but  he  himself  must  stand  on  the 
personal  credit  of  his  owners.  The  doctrine  of  the  English  law,  remains 
yet  to  be  definitely  declared  and  settled  in  this  country.  The  case  of  the 
ship  Grand  Turk,  (1  Fame's  Rep.,  72,)  is  a  decision  in  the  Circuit  Court 
of  the  United  States  for  New  York,  on  the  point,  that  the  master's  wages 
and  perquisites  were  no  lien  on  the  ship  ;  and  it  was  also  ruled  in  Fisher 
v  Willing,  (8  Serg.  <$•  Rawle,  118.  But,  in  the  Circuit  Court  of  the  United 
States,  for  Massachusetts,  (3  Mason's  Rep.,  255,)  the  rule  was  laid  down, 
that  the  master  had  a  lien  upon  the  freight  for  all  his  advances  and  re- 
sponsibilities abroad  upon  account  of  the  ship.  In  Ingersoll  v.  Van  Bok- 
kelin,  (7  Cowen,  670.  5  Wendell,  314,  S.  C.,)  it  was  decided  after  a  re- 
view of  the  American  authorities,  that  the  master  had  a  lien  on  the  freight 
and  cargo  for  his  necessary  advances  made,  and  responsibilities  incurred, 
in  a  foreign  port.  It  is  clearly  the  rule  of  the  maritime  law,  that  the 
owner  of  the  cargo,  sold  by  the  master  for  the  necessaries  of  the  ship,  has 
an  implied  lien  upon  the  ,ship  for  his  indemnity,  though  there  be  no  ex- 
press hypothecation. 

4.  What  is  the  rule  as  to  the  pilotage  ? — 175 

That  it  is  the  duty  of  the  master  engaged  in  a  foreign  trade,  to  put 
his  ship  under  the  charge  of  a  pilot,  both  on  his  outward  and  homeward 
voyage,  when  he  is  within  the  usual  limits  of  the  pilot's  employment. 
But  if  the  master,  at  a  foreign  port,  attempts  to  get  a  pilot  and  fails,  and 
then,  in  the  exercise  of  his  best  discretion,  endeavours  to  navigate  himself 
into  port,  and  grounds,  the  underwriter  is  not  discharged,  but  remains  liable 
for  the  injury. — (2  Barnw.  <$f  Adolph,  380.) 

5.  How  far  does  the  responsibilities  of  pilots  extend  ? — 176 

The  pilot,  while  on  board,  has  the  exclusive  control  of  the  ship.  He 
is  considered  as  master  pro  hac  vice,  and  if  any  injury  or  loss  be  sustained 
in  the  navigation  of  the  vessel,  while  under  the  charge  of  pilot,  he  is  an- 
swerable, as  strictiy  as  if  he  were  a  common  carrier,  for  his  default,  neg- 
ligence, or  unskilfulness  ;  and  the  owner  would  also  be  responsible  to  the 
party  injured  by  the  act  of  the  pilot,  as  being  the  act  of  his  agent. 

6.  What  are  the  principal  provisions  prescribed  by  congress  in  regard 
to  seamen  employed  in  the  merchant  service  ? — 177 

That  every  seaman  or  mariner,  on  all  voyages  from  the  United  States, 
to  a  foreign  port,  and,  in  certain  cases,  to  a  port  in  another  state,  other  than 
the  adjoining  one,  shall  sign  shipping  articles,  which  are  contracts  in  wri- 
ting or  in  print,  declaring  the  voyage  and  the  term  of  time  for  which  the 
seaman  are  shipped,  and  when  they  are  to  render  themselves  on  board. 
If  there  be  no  such  contract,  the  master  is  bound  to  pay  to  every  seaman 


142  KENT'S  COMMENTARIES,  [VOL.  in. 

who  performs  the  voyage,  the  highest  wages  given  at  that  port  for  a  simi- 
lar voyage,  within  the  three  next  preceding  months,  besides  forfeiting  for 
every  seaman,  a  penalty  of  twenty  dollars.  The  seamen  are  made  subject 
to  forfeitures  if  they  do  not  render  themselves  on  board  according  to  the 
contract,  or  if  they  desert  the  service  ;  and  they  are  liable  to  summary 
imprisonment  for  desertion,  and  to  be  detained  until  the  ship  be  ready  to 
sail.  If  the  mate  and  a  majority  of  the  crew,  after  the  voyage  is  begun, 
but  before  the  vessel  has  left  the  land,  deem  the  vessel  unsafe,  or  not  duly 
provided,  and  shall  require  an  examination  of  the  ship,  the  master  must 
proceed  to,  or  stop  at,  the  nearest  or  most  convenient  port,  where  an  in- 
quiry is  to  be  made.  If  the  complaint  shall  appear  to  be  groundless,  the 
expenses  and  reasonable  damages  to  be  ascertained  by  the  judge,  are  to 
be  deducted  from  the  wages  of  the  seaman.  But  if  the  vessel  be  found 
or  made  sea-worthy,  and  the  seamen  shall  refuse  to  proceed  on  the  voyage, 
they  are  subjected  to  imprisonment  until  they  pay  double  the  advance 
made  them  on  the  shipping  contract.  Fishermen  engaged  in  the  fisheries 
are  liable  to  the  like  penalties  for  desertion  ;  and  the  fishing  contract  must 
be  in  writing,  signed  by  the  shipper  and  the  fishermen,  and  countersigned 
by  the  owner. 

7.  What  is  provided  in  regard  to  wages  ? — 178 

That  one-third  shall  be  due  at  every  port  at  which  the  vessel  shall 
unlade  and  deliver  her  cargo,  before  the  voyage  be  ended ;  and  at  the  end 
of  the  voyage,  the  seamen  may  proceed  in  the  District  Court,  by  admiralty 
process,  against  the  ship,  if  the  wages  be  not  paid'  within  ten  days  after 
they  are  discharged. 

8.  What  is  provided  for  the  health  and  safety  of  seamen  ? — 179 

That  every  ship  belonging  to  a  citizen  of  the  United  States,  of  the 
burthen  of  one  hundred  and  fifty  tons,  or  upwards,  navigated  by  ten  or 
more  persons,  and  bound  to  a  foreign  port ;  or  of  the  burthen  of  seventy 
tons,  or  upwards,  and  navigated  by  six  or  more  persons,  and  bound  from 
the  United  States  to  the  West  Indies,  shall  be  provided  with  a  medicine 
chest,  properly  supplied  with  fresh  and  sound  medicines  ;  and  if  bound 
across  the  Atlantic  ocean,  with  requisite  stores  of  water,  and  salted  meat, 
and  wholesome  ship  bread,  well  secured  under  deck.  And  it  is  further 
provided,  for  the  purpose  of  affording  relief  to  sick  and  disabled  seaman, 
that  a  fund  be  raised  out  of  their  wages,  earned  on  board  of  any  vessel  of 
the  United  States,  and  be  paid  by  the  master  to  the  collector  of  the  port, 
on  entry  from  a  foreign  port,  at  the  rate  of  twenty  cents  per  month  for 
every  seamen.  It  is  also  made  the  duty  of  the  American  consuls  and 
commercial  agents,  to  provide  for  those  seamen  who  may  be  found  desti- 
tute within  their  consular  districts,  and  for  their  passages  to  some  port  in 
the  United  States,  in  a  reasonable  manner,  at  the  expense  of  the  United 
States.  So,  if  an  American  vessel  be  sold  in  a  foreign  port,  and  her  com- 
pany discharged,  or  a  seaman  be  discharged  without  his  consent,  the  mas- 
ter must  pay  to  the  consul  or  commercial  agent  at  the  place,  three  months 
pay,  over  and  above  the  wages  then  due,  for  every  such  seaman,  two-thirds 


LEC.    XLVI.]  REDUCED    TO    QUESTION'S    AXD    ANSWERS.  143 

of  which  is  to  be  paid  over  to  every  seamen  so  discharged,  upon  his  en- 
gagement on  board  of  any  vessel  to  return  to  the  United  States. 

9.  How  far  has  the  master  authority  over  the  seaman  ? — 181 

He  may  imprison,  and  also  inflict  reasonable  corporal  punishment 
upon  a  seaman,  for  disobedience  to  reasonable  commands.or  for  disorderly, 
riotous,  or  insolent  conduct ;  and  his  authority,  in  that  respect,  is  analo- 
gous to  that  of  a  master  on  land  over  his  apprentice  or  scholar.  He  may 
discharge  a  seaman  for  just  cause,  and  put  him  on  shore  in  a  foreign 
country  ;  but  the  cause  must  not  be  slight,  but  aggravated,  such  as  habitual 
disobedience,  mutinous  conduct,  theft,  or  habitual  drunkenness  ;  and  he  is 
responsible  in  damages  if  he  discharge  him  without  justifiable  cause. 
This  power  extends  to  the  mate  and  subordinate  officers. 

10.  What  is  the  maritime  law  as  to  the  expense  attending  sick  and  disa- 
bled seamen  during  the  voyage  • — 184 

It  was  decided  in  Harden  v.  Gordon,  (2  Masons  Rep.  541,)  that  the 
expense  of  curing  a  sick  seaman  in  -the  course  of  the  voyage,  was  a 
charge  upon  the  ship,  according  to  the  maritime  law  of  Europe. 

11.  What  is  the  rule  as  to  seamen's  right  to  extra  wages  1 — 185 

That  every  seaman  engaged  to  serve  on  board  a  ship,  is  bound,  from 
the  terms  of  the  contract,  to  do  his  duty  in  the  service  to  the  utmost  of  his 
ability,  and,  therefore,  a  promise  made  by  the  master  when  the  ship  is  in 
distress,  to  pay  extra  wages,  as  an  inducement  to  extraordinary  exertion, 
is  illegal  and  void.  It  requires  the  performance  of  some  service  not 
within  the  scope  of  the  original  contract,  as  by  becoming  a  voluntary  hos- 
tage upon  capture,  to  create  a  valid  claim,  on  the  part  of  the  seaman,  to 
compensation,  on  a  promise  by  the  master,  beyond  the  stipulated  wages. 
So,  no  wages  can  be  recovered  when  the  hiring  has  been  for  an  illegal 
voyage,  or  one  in  violation  of  a  statute. 

12.  What  is  the  rule  as  to  wages  where  a  seaman  is  unable  to  render  his 
service  by  sickness  or  bodily  injury,  happening  during  the  voyage? — 186 

That  he  is  entitled  to  his  whole  wages  for  the  voyage.  He  will  be 
equally  entitled  to  his  wages  to  the  end  of  the  voyage,  when  wrongfully 
discharged  by  the  master  during  the  course  of  it.  If  the  seaman  be 
wrongfully  discharged  on  the  voyage,  the  voyage  is  then  ended  with  re- 
spect to  him,  and  he  is  entitled  to  sue  for  his  full  wages  for  the  voyage. 

13.  What  is  the  general  rule  as  to  wages  ? — 187 

The  general  principle  of  the  marine  law  is,  that  freight  is  the  mother 
of  wages,  and  if  no  frieght  be  earned,  no  wages  are  due.  This  principle 
protects  the  owner,  by  making  the  right  of  the  mariner  to  his  wages,  com- 
mensurate with  the  right  of  the  owner  to  his  freight ;  but  that  the  rule 
may  duly  apply,  the  freight  must  not  be  lost  by  the  fraud  or  wrongful  act 


144  KENT'S  COMMENTARIES,  [VOL.  in. 

of  the  master.     The  policy  of  the  rule  applies  to  cases  of  loss  of  freight 
by  a  peril  of  the  sea. 

Seamen's  wages,  in  trading  voyages,  are  due  pro  rata  itineris. 

14.  What  is  the  rule  where  a  seaman  dies  on  the  voyage  ? — 189 

There  is  no  settled  English  rule  on  the  subject  of  his  wages.  In 
one  case,  the  court  intimated,  that  his  representatives  might  be  entitled  to 
a  proportion  of  his  wages  up  to  his  death,  when  the  hiring  was  by  the 
month.  In  this  country,  there  has  been  contradictory  decisions  on  the 
point.  In  the  Circuit  and  District  Courts  of  the  United  States,  for  Penn- 
sylvania, it  was  decided,  that  the  representatives  of  a  seaman  dying  on  the 
voyage,  were  entitled  to  full  wages  to  the  end  of  the  voyage.  On  the  other 
hand,  it  was  subsequently  decided,  in  the  District  Court  for  South  Caro- 
lina, and  in  the  District  Court  for  Massachusetts,  that  full  wages,  by  the 
marine  law,  meant  only  the  full  wages  up  to  the  death  of  the  mariner. 

15.  What  effect  has  capture  upon  wages  ?  — 191 

Capture  by  an  'enemy  extinguishes  the  contract  for  seamen's  wages  ; 
and  Sir  William  Scott,  in  the  case  of  The  Friends,  (4  Rob.  Adm.  Rep. 
143,)  held,  that  the  re-capture  of  the  vessel  did  not  revive  the  right,  or  re- 
store him  to  his  connection  with  the  ship,  inasmuch  as  he  was  not  on 
board  at  the  re-capture,  and  did  not  render  any  subsequent  service.  The 
doctrine  of  this  case  was  overruled  in  Bergstrom  v.  Mills,  (3  Esp.  N.  P. 
Rep.  36,)  and  the  American  decisions  have  fully  discussed  the  question, 
and  they  lay  down  a  different  rule,  and  proceed  on  the  just  principle,  that 
the  owner  recovers  his  freight,  and  that  is  the  parent  of  wages.  When- 
ever freight  is  earned,  wages  are  due,  and  must  be  paid. 

16.  What  is  the  law  in  cases  of  injuries  produced  by  the  misconduct 
of  any  of  the  crew  ?  — 194 

They  are  bound  to  contribute  out  of  their  wages.  But  the  circum- 
stances must  be  such  as  to  fix  the  wrong  upon  some  of  the  crew  ;  and 
then,  if  the  individual  be  unknown,  those  of  the  crew,  upon  whom  the  pre- 
sumption of  guilt  rests,  stand  as  sureties  for  each  other,  and  they  must 
contribute  ratably  to  the  loss.  If  the  embezzlement  be  fixed  upon  any  in- 
dividual, he  is  wholly  responsible. 

17.  How  is  the  lien  of  seamen  for  wages  regarded  by  the  marine  law  ? 
—196 

Few  claims  are  more  highly  favoured  and  protected  by  law,  and  when 
due,  the  vessel,  owners,  and  master  are  liable  for  the  payment  of  them. 
The  seamen  need  not  libel  the  vessel  at  the  immediate  port  where  they 
are  discharged.  They  may  disregard  bottomry  bonds,  and  pursue  their 
lien  for  wages  afterwards,  even  against  a  subsequent  bonafide  purchaser. 
There  is  no  difference  between  a  vessel  seized  abroad  and  restored  in 
specie  or  in  value  ;  the  lien  attaches  to  the  thing,  and  whatsoever  is  sub- 
stituted for  it. 


LEG.  XLVII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  145 

18.  What  causes  work  a  forfeiture  of  wages  ? — 198 

Desertion  from  the  ship  without  just  cause,  or  the  justifiable  discharge 
of  a  seaman  by  the  master.  But  the  forfeiture  is  saved  if  the  seaman  re- 
pents, and  makes  compensation,  or  offer  of  amends,  and  is  restored  to  his 
duty. 


LECTURE    XLVII. 
OF  THE  CONTRACT  OF  AFFREIGHTMENT. 

1.  What  is  a  charter  party  ? — 200  • 

It  is  a  contract  of  affreightment  in  writing,  by  which  the  owner  of  a 
ship  lets  the  whole,  or  a  part  of  her,  to  a  merchant,  for  the  conveyance  of 
goods,  on  a  particular  voyage,  in  consideration  of  the  payment  of  freight. 

2.  What  does  the  charter  party  usually  contain?— 202 

It  describes  the  parties,  the  ship,  and  the  voyage,  and  contains,  on 
the  part  of  the  owner,  a  stipulation  as  to  sea-worthiness,  and  as  to  the 
promptitude  with  which  the  vessel  shall  receive  the  cargo,  and  perform 
the  voyage  ;  and  the  exception  of  such  perils  of  the  sea  for  which  the 
master  and  ship  owners  do  not  mean  to  be  responsible.  On  the  part  of 
the  freighter,  it  contains  a  stipulation  to  load  and  unload  within  a  given 
time,  with  an  allowance  of  so  many  lay,  or  running  days,  for  loading  the 
cargo,  and  the  rate  and  times  of  payment  of  the  freight,  and  rate  of  demur- 
rage beyond  the  allotted  days. 

3.  What  is  the  duty  of  the  owner  of  a  chartered  ship  ? — 203 

It  is  his  duty  not  only  to  see  that  she  is  duly  equipped,  and  in  suitable 
condition  to  perform  the  voyage,  but  he  is  bound  to  keep  her  in  that  con- 
dition throughout  the  voyage,  unless  he  be  prevented  by  perils  of  the  sea. 
If,  in  consequence  of  a  failure  of  equipment  of  the  vessel,  the  charterer 
does  not  employ  her,  he  is  not  bound  to  pay  freight ;  but  if  he  actually 
employs  her,  he  must  pay  the  freight,  though  he  has  his  remedy  on  the 
charter  party  for  damages  sustained,  by  reason  of  the  deficiency  of  the  ves- 
sel in  her  equipment. 

4.  What  is  understood  by  demurrage  1 — 203 

The  extra  lay  days,  (being  the  days  allowed  to  load  and  unload  the 
cargo,)  are  called  days  of  demurrage ;  and  that  term  is  likewise  applied 
19 


146  KENT'S  COMMENTARIES,  [VOL.  lit. 

to  the  payment  for  such  delay,  and  it  may  become  due  either  by  the  ship's 
detention,  for  the  purpose  of  unloading  or  loading  the  cargo,  either  before, 
or  during,  or  after  the  voyage,  or  in  waiting  for  convoy. 

5.  What  is  the  rule  as  to  sea-worthiness  ? — 204 

The  owner  is  bound  to  see  that  the  ship  be  seaworthy,  which  means 
that  the  vessel  must  be  tight,  staunch,  strong,  well  furnished,  manned,  vic- 
tualled, and,  in  all  respects,  equipped  in  the  usual  manner,  for  the  merchant 
service  -in  such  a  trade.  The  ship  must  be  fit  and  competent  for  the  sort 
of  cargo,  and  the  particular  service  for  which  she  is  engaged.  If  there 
should  be  a  latent  defect  in  the  vessel,  unknown  to  the  owner  and  undis- 
coverable  upon  examination,  yet  the  better  opinion  is,  that  the  owner  must 
answer  for  the  damage  occasioned  by  that  defect.  The  owner  is  also 
obliged  to  see  that  the  ship  be  furnished  with  all  the  requisite  papers  ac- 
cording to  the  laws  of  the  country  to  which  she  belongs,  and  according  to 
treaties,  and  the  law  of  nations. 

6.  What  is  understood  by  a  bill  of  lading  ? — 207 

It  is  an  acknowledgment  by  the  master  of  the  receipt  of  the  goods 
on  board,  and  of  the  conveyance  of  them  which  he  assumes. 

7.  What  does  it  contain  ? — 207 

It  contains  the  quantity  and  marks  of  the  merchandise,  the  names  of 
the  shipper  and  consignee,  the  places  of  departure  and  discharge,  the  name 
of  the  master,  and  of  the  ship,  with  the  price  of  freight.  By  the  bill  of 
lading,  the  master  engages  as  a  common  carrier  to  carry  and  deliver  the 
goods  to  the  consignee,  or  his  order ;  and  by  the  common  law,  owners 
were  responsible  for  damages  to  goods  on  board,  to  the  full  extent  of  the 
loss.  There  are  commonly  three  bills  of  lading ;  one  for  the  freighter, 
another  for  the  consignee,  factor,  or  agent  abroad,  and  one  is  usually" kept 
by  the  captain  for  his  own  use.  It  is  the  document  and  title  of  the  goods 
sent ;  and,  as  such,  if  it  be  to  order,  or  assigns,  is  transferable  in  the 
market. 

8.  What  is  the  effect  of  an  endorsement  of  the  bill  of  lading  ? — 207 

The  endorsement  and  delivery  of  it,  transfers  the  property  in  the 
goods  from  the  time  of  the  delivery.  The  bona  fde  holder  of  the  bill  of 
lading  endorsed  by  the  consignee  is  entitled  to  the  goods,  if  he  purchased 
it  for  a  valuable  consideration. 

9.  What  are  the  obligations  of  the  master  of  a  chartered  ship  during 
the  voyage  ? — 209 

When  the  voyage  is  ready,  he  is  bound  to  sail  as  soon  as  the  wind 
and  tide  will  permit ;  but  he  ought  not  to  set  out  in  very  tempestuous 
weather.  He  is  bound,  likewise,  to  proceed  to  the  port  of  delivery  with- 
out delay,  and  without  any  unnecessary  deviation  from  the  direct  and  usual 


LEC.  XLVH.j  REDUCED  TO  QUESTIONS  AND  ANSWERS.  147 

course.  If  he  covenants  to  go  to  a  loading  port,  by  a  given  time,  he  must 
do  it,  or  abide  the  forfeiture ,  and  if  he  be  forced  out  of  his  regular  course, 
he  must  regain  it  with  as  little  delay  as  possible. 

10.  What  cause  will  justify  a  deviation  ?— 209 

Nothing  but  some  necessary  cause,  as  to  avoid  a  storm,  or  pirates,  or 
enemies,  or  to  procure  requisite  supplies  or  repairs,  or  to  relieve  a  ship  in 
distress.  In  cases  of  necessity,  as  where  the  ship  is  wrecked,  or  other- 
wise disabled  in  the  course  of  the  voyage,  and  cannot  be  repaired,  or  can- 
not under  the  circumstances,  without  too  great  delay  and  expense,  the 
master  may  procure  another  competent  vessel  to  carry  on  the  cargo  and 
save  his  freight. 

11.  What  if  the  ship  be  captured  during  the  voyage  ? — 213 

The  master  is  bound  to  render  his  exertions  to  rescue  the  property 
from  condemnation,  by  interposing  his  neutral  claims,  and  exhibiting  all 
the  documents  in  his  power  for  the  protection  of  the  cargo. 

12.  What  is  the  rule  as  to  the  delivery  of  the  goods  at  the  port  of  desti- 
nation ? — 215 

The  general  rule  is,  that  delivery  at  the  wharf,  discharges  the  master. 
But  the  reasonable  qualification  of  the  rule  is,  that  there  must  be  a  de- 
livery at  the  wharf  to  some  person  authorized  to  receive  the  goods,  or  due 
previous  notice  must  have  been  given  to  the  consignee  of  the  time  and 
place  of  delivery. 

13.  What  causes  will  excuse  the   ship-owner  and  master  for  the  non- 
delivery of  the  cargo? — 216 

They  are  liable  as  common  carriers,  in  all  the  strictness  and  extent 
of  the  common  law,  and  can  only  be  excused  by  events  falling  within  one 
of  the  expressions  "  act  of  God  and  public  enemies,"  or  some  cause  ex- 
pressly provided  for  in  the  charter  party. 

14.  What  is  meant  by  perils  of  the  sea? — 216 

They  denote  natural  accidents  peculiar  to  that  element,  which  do  not 
happen  by  the  intervention  of  man,  nor  are  to  be  prevented  by  human 
prudence.  A  casus  fortuitus  was  defined  by  the  civil  law  to  be  quod  damno 
fatali  contingit,  cuivis  d iligentissimo  possit  contingere.  It  is  a  loss  happen- 
ing in. spite  of  all  human  effort  and  sagacity. 

15.  What  are  the  duties  of  the  shipper?  — 218 

To  use  the  ship  in  a  lawful  manner,  and  for  the  purpose  for  which  it 
was  let.  v 

16.  What  is  meant  by  freight  ? — 219 


148  KENT'S  COMMENTARIES,  [VOL.  in. 

In  the  common  acceptation  of  the  term,  it  means  the  price  for  the 
actual  transportation  of  goods  by  sea  from  one  place  to  another  ;  but,  in 
its  more  extensive  sense,  it  is  applied  to  all  rewards  or  compensation  paid 
for  the  use  of  ships. 

17.  What  is  meant  by  dead  freight  ? — 219 

If  the  merchant  agrees  to  furnish  a  return  cargo,  and  he  furnishes 
none,  and  lets  the  ship  return  in  ballast,  he  must  make  compensation  to 
the  amount  of  the  freight ;  and  this  is  sometimes  termed  dead  freight,  in 
contradistinction  to  freight  due  for  the  actual  carriage  of  goods. 

18.  What  is  the  rule  as  to  the  owner's  lien  for  freight? — 220 

If  there  be  no  express  agreement  in  the  case,  the  master  is  not  bound 
to  part  with  the  goods  until  the  freight  be  paid,  but  if  he  refuses  to  deliver 
the  goods  for  other  cause  tfian  non-payment  of  freight,  he  cannot  avail 
himself  of  the  want  of  tender.  When  the  regulations  of  the  revenue  re- 
quire the  goods  to  be  landed  and  deposited  in  a  public  warehouse,  the 
master  may  enter  them  in  his  own  name,  and  preserve  the  lien.  The  ship 
is  bound  to  the  merchandise  and  the  merchandise  to  the  ship,  according  to 
the  language  of  Cleirac.  The  ship-owner's  lien  for  freight  is  gone  when 
the  charterer  is  constituted  owner,  and  takes  exclusive  possession  for  the 
voyage,  or  when  payment  of  the  freight  is,  by  agreement,  postponed  beyond 
the  time,  or  at  variance  with  the  time  and  place,  for  the  delivery  of  the  goods. 
But  without  a  plain  intent  to  the  contrary,  the  ship-owner  will  not  be  pre- 
sumed to  have  relinquished  his  lien  on  the  cargo  for  the  freight,  notwith- 
standing he  has  chartered  the  vessel  to  another.  If  goods  by  the  bill  of 
lading,  were  to  be  delivered  to  B.,  or  his  assigns,  he  or  they  paying  freight, 
and  the  assignee  receives  the  goods,  he  is  responsible  to  the  master  for 
freight,  under  the  implied  undertaking  to  pay  it.  So,  if  the  master  delivers 
the  goods  without  payment  of  freight,  he  may  sue  the  consignee  to  whom 
the  goods  were  delivered.  If  he  cannot  recover  his  freight  of  the  con- 
signee, he  still  has  his  remedy  over  on  the  charter  party  against  the 
shipper. 

19.  What  if  a  ship  be  prohibited  by  the  government  of  the  country  from 
entering  at  the  port  of  delivery,  and  the  cargo  be  brought  back  ? — 222 

If  the  prohibition  took  place  after  the  commencement  of  the  voyage, 
the  freight  for  the  outward  voyage,  has  been  held  to  have  been  earned. 
Nothing  can  be  more  just,  observes  Valin,  than  that  the  outward  freight 
should  be  allowed,  in  such  a  case,  since  the  interruption  proceeds  from  an 
extraordinary  cause,  independent  of  the  ordinary  maritime  perils.  The 
case  of  a  blockade  or  interdiction  of  commerce  with  the  port  of  discharge, 
is  held  to  be  different ;  for  in  that  case,  the  voyage  is  deemed  to  be  broken 
up,  and  the  charter  party  dissolved ;  and  if  the  cargo,  by  reason  of  that 
obstacle,  be  brought  back,  no  freight  is  due.  The  same  principle  applies 
if  the  voyage  be  broken  up  and  lost,  by  capture  on  the  passage.  On  the 
other  hand,  an  embargo  detaining  the  vessel  at  the  port  of  departure,  or  in  the 


LEG.  XLVII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  149 

course  of  the  voyage,  does  not,  of  itself,  work  a  dissolution  of  the  contract. 
It  is  requisite  that  the  ship  break  ground,  to  give  an  inception  to  freight. 

20.  What  if  the  goods  become  so  diminished  in  value,  during  the  voy- 
age, as  not  to  be  worth  the  freight  1—224 

The  consignee  is  bound  to  take  the  goods  and  pay  the  freight.  The 
ship-owner  performs  his  engagement  when  he  carries  and  delivers  the 
goods.  The  right  to  his  freight  then  becomes  absolute.  It  may  impair 
the  remedy  which  his  lien  afforded,  but  it  does  not  affect  his  personal 
demand  against  the  shipper. 

21.  In  what  cases  does  the  question  of  ratable  freight  arise  ?— 227 

1.  When  the  ship  has  performed  the  whole  voyage,  and  has  brought 
only  a  part  of  her  cargo  to  the  place  of  destination.  2.  When  the  ship 
has  not  performed  her  whole  voyage,  and  the  goods  have  been  delivered 
to  the  merchant,  at  a  place  short  of  the  port  of  delivery.  In  the  case  of 
a  general  ship,  or  one  chartered  for  freight,  to  be  paid  according  to  the 
quantity  of  goods,  freight  is  due  for  what  the  ship  delivers.  But  if  the 
ship  be  chartered  at  a  specific  sum  for  the  voyage,  the  stipulated  voyage 
must  be  actually  performed.  A  partial  performance  is  not  sufficient,  nor 
can  a  partial  payment  of  freight  be  claimed  except  in  special  cases.  If, 
however,  the  merchant  accepts  the  goods  at  the  intermediate  port,  the 
general  rule  of  the  marine  law  is,  that  freight  &  to  be  paid  according  to 
the  proportion  of  the  voyage  performed,  and  the  law  will  imply  such  a 
contract ;  and  it  is  now  settled  in  the  English  and  American  law,  that 
freight,  pro  rata  itineris,  is  due,  when  the  ship,  by  inevitable  necessity,  is 
forced  into  a  port  short  of  her  destination,  and  is  unable  to  prosecute  the 
voyage,  and  the  goods  are  there  voluntarily  accepted  by  the  owner.  Such 
an  acceptance  constitutes  the  basis  of  the  rule  for  a  pro  rata  freight. 

22.  How  is  a  loss  by  the  collision  of  ships  adjusted  ? — 230 

When  the  fact  is  clear,  that  a  fault  has  been  committed  by  one  party, 
or  that  he  was  in  want  of  due  skill  or  care,  and  the  loss  was  the  conse- 
quence thereof,  the  party  in  fault  must  pay  all  the  damages. 

23.  What  are  the  nautical  rules,  by  which  want  of  care  may  be  ascer- 
tained?—230 

In  most  cases  they  are  as  follows.  The  vessel  that  has  the  wind 
free,  or  is  sailing  before  or  with  the  wind,  must  get  out  of  the  way  of  the 
vessel  that  is  close-hauled,  or  sailing  by  or  against  it.  The  vessel  on  the 
starboard  tack  has  a  right  to  keep  her  wind,  and  the  vessel  on  the  larboard 
tack  is  bound  to  bear  up  or  heave  about  to  avoid  danger,  or  be  answerable 
for  the  consequences.  The  vessel  to  windward  is  to  keep  away  when 
both  vessels  are  going  the  same  course  in  a  narrow  channel,  and  there  is 
danger  of  running  afoul  of  each  other.  But  in  the  case  of  a  steam  vessel, 
which  has  greater  power,  and  is  more  under  command,  she  is  bound  to 
give  way  to  a  vessel  with  sails,  in  case  of  collision. 


KENT'S  COMMENTARIES,  [VOL.  in. 

24.  What  is  meant  by  general  average  ?~ 232 

General,  gross,  or  extraordinary  average,  means  a  contribution  made 
by  all  parties  in  interest,  for  the  benefit  of  all ;  and  it  is  called  general,  or 
gross  average,  because  it  falls  upon  the  gross  amount  of  the  ship,  car'eo 
and  freight. 

25.  What  constitutes  the  ground  of  a  general  average  ? 233 

The  goods  must  not  be  swept  away  by  the  violence  of  the  waves,  for 
then  the  loss  falls  entirely  upon  the  merchant  or  his  insurer,  but  they  must 
be  intentionally  sacrificed  by  the  mind  and  agency  of  man  for  the  safety  of 
the  ship,  and  residue  of  the  cargo.  The  jettison  must  be  made  for  suffi- 
cient cause,  and  not  from  groundless  timidity.  It  must  be  made  in  a  case 
of  extremity,  when  the  ship  is  in  danger  of  perishing  by  the  fury  of  the 
storm,  or  is  labouring  upon  the  rocks  and  shallows,  or  is  closely  pursued 
by  pirates  or  enemies  ;  and  then,  if  the  ship,  and  the  residue  of  the  cargo 
be  saved  by  means  of  the  sacrifice,  nothing  can  be  more  reasonable  than 
that  the  property  saved  should  bear  its  proportion  of  the  loss.  To  avoid 
an  absolute  shipwreck,  it  may  sometimes  be  necessary  to  run  the  vessel 
on  shore  in  a  place  which  appears  to  be  the  least  dangerous  ;  and  that  will 
form  a  case  of  general  average. 

26.  What  things  are  the  proper  subjects  for  a  general  average  ?— 235 
If  a  ship  be  injured  by  perils  of  the  sea,  and  be  obliged  to  go  into 

port  to  refit,  the  wages  and  provisions  of  the  crew,  during  the  detention, 
constitute  the  subject  of  a  general  average  ;  the  necessary  expenses  of 
going  into  port,  and  of  preparing  for  refitting  the  ship,  by  unloading,  ware- 
housing, and  re-loading  the  cargo,  are  general  average.  The  cost  of  the 
repairs,  so  far  as  they  accrue  to  the  ship  alone  as  a  benefit,  and  would 
have  been  necessary  in  that  port,  on  account  of  the  ship  alone,  are  not 
average.  The  wages  and  provisions  of  the  crew,  during  capture  and  de- 
tention for  adjudication,  are  the  subject  of  general  average.  If  part  of  the 
cargo  be  voluntarily  delived  up  to  a  pirate,  or  an  enemy,  by  way  of  ransom 
or  contribution,  and  to  induce  him  to  spare  the  vessel  and  the  residue  of 
the  goods,  the  property  saved  must  contribute  to  the  loss,  as  beino-  the 
price  of  the  safety  to  the  rest.  If  masts,  cable,  and  other  equipments  of 
the  vessel  be  cut  away,  to  save  her  in  a  case  of  extremity,  their  value  must 
be  made  good  by  contribution. 

27.  What  goods  are  subject  to  contribution,  in  cases   of  general  aver- 
age ?— 240 

The  general  doctrine  is,  that  all  merchandise,  of  whatever  kind  or 
weight,  or  to  whomsoever  belonging,  contributes.  The  contribution  is 
made,  not  on  account  of  encumbrance  to  the  ship,  but  of  safety  obtained, 
and,  therefore,  bullion  and  jewels  put  on  board  as  merchandise,  contribute 
according  to  their  full  value.  Goods  shipped  on  deck  contribute  if  saved, 
but  if  lost  by  jettison,  they  are  not  entitled  to  the  benefit  of  general  aver- 
age. The  common  rule,  according  to  Magens,  is,  that  what  articles  pay 


LEG.  XLYIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  151 

freight  must  contribute,  and  what  pay  no  freight  pay  no  average.  Instru- 
ments of  defence  and  provisions  do  not  contribute,  nor  do  wages  of 
seamen  contribute.  Goods  sold  for  the  necessities  of  the  ship,  are  the 
subject  of  general  average. 

28.  What  is  the  general  rule  for  settling  general  average  ? — 242 

That  the  goods  sacrificed,  as  well  as  the  goods  saved,  are  to  be 
valued  at  the  clear  net  price  they  would  have  yielded,  after  deducting 
freight,  at  the  port  of  discharge.  The  value  of  the  vessel  lost  is  estima- 
ted according  to  her  value  at  the  port  of  departure,  making  a  reasonable 
allowance  for  wear  and  tear,  on  the  voyage  up  to  the  time  of  the  disaster. 

29.  What  is  meant  by  salvage  1 — 245 

The  compensation  allowed  to  persons  by  whose  assistance  a  ship  or 
its  cargo  has  been  saved  in  whole  or  in  part  from  impending  danger,  or 
recovered  from  actual  loss,  in  cases  of  shipwreck,  derelict,  or  re-capture. 

30.  What  amount  is  usually  allowed  for  salvage  ? — 245 

The  courts  are  liberal  in  the  allowance  of  salvage  in  meritorious 
cases,  as  a  reward  for  the  service,  and  as  an  incentive  to  effort ;  and  the 
allowance  fluctuates  between  one  half,  one  third,  and  one  fourth  of  the  net 
proceeds  of  the  property  saved,  but  one  third  has  been  the  most  usual 
rate.  In  general,  neither  the  master,  nor  a  passenger,  seaman,  or  pilot,  is 
entitledCto  compensation  in  the  way  of  salvage,  for  the  ordinary  assistance 
he  may  afford  a  vessel  in  distress.  Yet  if  the  ship  has  been  abandoned 
so  as  to  discharge  a  seaman  from  his  contract,  and  he  subsequently  contri- 
butes to  the  preservation  of  the  vessel,  he  will  be  entitled  to  salvage. 

3 1 .  What  will  work  a  dissolution  of  the  contract  of  affreightment,  with- 
out a  performance  ?— 248 

If  the  voyage  becomes  unlawful,  or  impossible  to  be  performed,  or  if 
it  be  broken  up,  either  before  or  after  it  has  actually  commenced,  by  war, 
or  interdiction  of  commerce  with  the  place  of  destination  the  contract  is 
dissolved. 


LECTURE    XLVIII. 
OF  THE  LAW  OF  MARINE  INSURANCE. 

1.  What  is  marine  insurance?— 252 

It  is  a  contract  whereby  one  party,  for  a  stipulated  premium,  undertakes 
to  indemnify  the  other  against  certain  perils,  or  sea  risks,  to  which  his 


152  KENT'S  COMMENTARIES,  [VOL.  in- 

ship,  freight,  and  cargo,  or  some  of  them,  may  be  exposed,  during  a  cer- 
tain voyage,  or  a  fixed  period  of  time. 

2.  Who  may  be  insured  1—252 

All  persons  whether  aliens  or  natives,  except  alien  enemies. 

3.  Who  may  be  insurers  ? — 255 

Any  individuals,  or  companies,  or  partnerships,  may  lawfully  become 
insurers.  In  New  York  marine  insurance,  or  lending  on  respondentia  or 
bottomry,  effected  within  the  state,  is  prohibited  to  all  persons  and  com- 
panies residing  in  any  foreign  country,  acting  by  agent  here.  Persons  and 
associations  residing  in  other  states  effecting  such  insurances  in  New 
York,  are  taxed  ten  per  cent  on  their  premiums. 

4.  What,  if  in  the  terms  of  the  contract,  a  ship  be  specified  ' — 257 

It  becomes  a  part  of  the  contract,  and  no  other  ship  can  be  substitu- 
ted without  necessity ;  but  the  cargo  may  be  shifted  from  one  ship  to  an- 
other, if  done  from  necessity,  and  the  insurer  of  it  will  be  still  liable. 

5.  What  does  an  insurance  on  the  body  of  a  ship  include  ? — 257 

It  sweeps  in,  by  the  comprehensiveness  of  the  expression,  whatever 
is  appurtenant  to  the  ship.  This  doctrine  is  taught  by  all  the  continental 
writers  on  insurance,  as  well  as  in  the  English  law. 

6.  What  if  a  partner  insure  in  his  own  name  only  ? — 258 

It  will  cover  his  undivided  interest  in  the  partnership,  and  no  more. 
If  the  policy  has  the  words,  and  whomsoever  it  may  concern,  then  it  will 
cover  the  partnership  interest. 

7.  To  whom  only  will  those  general  words,  whomsoever  it  may  concern, 
apply  ?— 258 

To  the  person  having  an  interest  in  the  subject  insured,  and  who  was 
in  the  contemplation  of  the  contract. 

8.  Will  a  policy  on  a  voyage  from  abroad  be  good,  if  it  omit  to  name 
the  ship,  or  master,  or  port  of  discharge,  or  consignee  1 — 259 

It  may,  for  all  these  may  be  unknown  to  the  insured  when  he  applies 
for  insurance. 

9.  What  if  a  policy  be  part  written  and  part  printed,  and  there  should 
arise  a  reasonable  doubt,  upon  the  meaning  of  the  contract  ? — 260 

The  greater  effect  is  to  be  attributed  to  the  written  words. 

10.  What  if  an   agent  effects  a   policy  for  his   principal   without  his 
knowledge  ? — 260 


LEC.  XLVIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  153 

If  the  principal  afterwards  adopts  the  acts,  the  insurer  is  bound ;  but 
if  it  be  not  adopted  the  contract  is  not  binding. 

11.  Is  a  merchant  who  has  effects  of  his  foreign  correspondent  in  his 
hands,  or  who  has  been  in  the  habit  of  insuring  for  him,  bound  to  comply 
with  an  order  to  insure  ? — 261 

He  is,  and  the  order  may  be  implied  in  some  cases,  from  the  pre- 
vious course  of  dealing  between  the  parties. 

12.  What  if  the  agent  neglects,  or   imperfectly  executes  the  order? 
—261 

He  is  answerable  as  if  he  himself  was  the  insurer,  and  is  entitled  to 
the  premium. 

13.  What  if  the  subject  matter  of  the  policy  be  assigned  ? — 261 

The  policy  may  also  be  assigned,  so  as  to  give  a  right  of  action  to 
the  assignee. 

14.  What  is  the  proper  subject  of  insurance  1 — 262 
Lawful  property  engaged  in  lawful  trade. 

15.  Is  a  policy  on  a  voyage  undertaken  in  violation  of  a  blockade,  or 
of  an  embargo,  or  of  the  provisions  of  a  treaty,  legal  ?— 262 

It  is  not,  whether  the  policy  be  on  the  ship,  freight  or  goods  embark- 
ed in  the  illegal  traffic. 

16.  Is  the  insurance  of  goods  employed  in  a  foreign  smuggling  or  con- 
traband trade,  valid?— 263 

It  is,  if  the  insured  was  fully  informed,  when  he  entered  into  the  con- 
tract, of  the  nature  of  the  trade.  But  insurance  to,  does  not  include  the  risk 
of  going  into  the  port  in  violation  of  law,  unless  the  peril  of  illicit  entry 
at  the  port  be  also  within  the  provision  or  contemplation  of  the  policy. 

17.  Is  the  insurance  by  a  neutral,  of  goods  usually  denominated  contra- 
band of  war,  valid  ?— 266 

It  is,  for  it  is  not  deemed  unlawful  for  a  neutral  to  be  engaged  in  a 
contraband  trade.  Illicit  voyages  may  be  ranked  in  several  classes  : 

1.  When  the  sovereign  of  the  country  to  which  the  ship  belongs,  in- 
terdicts trade  with  a  foreign  country  or  port ;  in  which  case,  a  voyage,  for 
the  purpose  of  trade,  would  be  illegal,  and  all  insurances  thereon  void. 

2.  Where  the  trade  in  question  is  prohibited  by  the  trade  laws  of  a 
foreign  state  ;  and  in  that  case,  the  voyage,  in  such  trade,  may  be  the  sub- 
ject of  insurance  in  any  state  in  which  the  trade  is  not  prohibited,  for  the 
municipal  laws  of  one  jurisdiction  have  no  force  in  another. 

3.  When  neutrals  transport  to  belligerents  goods  contraband  of  war. 

20 


154  KENT'S  COMMENTARIES,  [VOL.  in 

The  law  of  nations  does  not  go  to  the  extent  of  rendering  the  neutral  ship- 
per of  goods  contraband  of  war  an  offender  against  his  own  sovereign. 
An  insurance,  then,  by  neutrals,  in  a  neutral  country,  is  valid,  whether  it 
relates  to  an  interloping  trade  in  a  foreign  port,  illicit  lege  loci,  or  to  a  trade 
in  transporting  contraband  goods,  which  is  illicit  jure  belli. 

18.  From  what  reason,  have  the  ordinances  generally  prohibited  the  in- 
surance of  seamen's  wages  ? — 269 

From  the  consideration,  that  if  the  title  to  wages  did  not  depend  upon 
the  earning  of  freight  by  the  performance  of  the  voyage,  seamen  would 
want  one  great  stiraulous  to  exertion  in  times  of  difficulty  and  disaster. 

19.  What  is  the  doctrine  as  to  insuring  freight  1 — 269 

In  France  and  Spain,  freight  not  earned,  cannot  be  insured,  and  for 
the  same  reason,  that  seamen's  wages  are  not  insureable  ;  freight  already 
earned  may  be  insured.  In  England,  and  in  the  United  States,  future,  or 
expected  and  contingent,  and  even  dead  freight,  is  held  to  be  an  insurable 
interest. 

20.  When  does  the  risk  generally  begin  ? — 270 

From  the  time  the  goods,  or  a  part  of  them,  are  put  on  board  ;  and  if 
the  ship  has  been  let  to  freight  under  a  charter  party  of  affreightment,  the 
right  to  freight  commences,  and  is  at  risk,  so  soon  as  the  ship  breaks 
ground  ;  and  if  the  charterer  omits  to  put  on  board  the  expected  cargo,  and 
the  ship  performs  the  voyage  in  ballast,  the  right  to  freight  is  perfect. 

21.  Are  profits  a  proper  subject  of  insurance  ? — 271 

They  are  ;  the  right  to  insure  expected  or  contingent  profits,  is  settled 
in  England,  and  has  received  repeated  and  elaborate  confirmation.  They 
are  likewise,  in  this  country,  held  to  be  an  insurable  interest.  In  France 
the  insurances  on  profits  are  unlawful. 

22.  What  is  an  open  policy  ? — 272 

It  is  one  in  which  the  amount  of  interest  is  not  fixed,  but  is  to  be  as- 
certained by  the  insured,  in  case  a  loss  should  happen. 

23.  What  is  a  valued  policy  ? — 273 

It  is  where  the  value  has  been  set  on  the  ship  or  goods  insured,  and 
inserted  in  the  policy,  in  the  nature  of  liquidated  damages. 

24.  What  is  the  effect  of  an  excessive,  or  fraudulent  valuation  ? — 273 

A  valuation,  fraudulent  in  fact,  as  respects  the  insurer,  or  so  excessive 
as  to  raise  a  necessary  presumption  of  fraud,  entirely  vacates  the  policy. 

25.  Does  the  valuation  apply  to  partial  losses  ? — 274 


LEG.  XLVJII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  155 

The  better  opinion  is,  that  in  settling  all  losses,  total  or  partial,  the 
valuation  of  the  property  in  the  policy,  is  to  be  considered  as  correct  in 
the  adjustment  of  the  loss. 

26.  What  if  there  be  certain  articles  comprised  in  a  valuation  and  part 
of  them  are  safely  landed  before  the  ship  is  lost  ? — 275 

The  valuation  must  be  opened,  and  the  claim  of  the  insured  reduced 
in  the  proportion  which  the  articles  actually  lost  bore  to  the  valuation  of 
the  whole  at  the  commencement  of  the  risk.  - 

27.  What  is  a  wager  policy  ? — 275 

A  policy  on  a  mere  hope  or  expectation,  without  any  interest  in  the 
subject  matter. 

28.  What  is  a  sufficient  interest  ? — 275 

If  a  person  be  directly  liable  to  loss  on  the  happening  of  any  partic- 
ular event,  he  has  an  insurable  interest.  A  creditor,  to  whom  property  is 
assigned,  as  collateral  security,  has  an  insurable  interest  to  the  amount  of 
his  debt.  Commissions  to  become  due  to  public  agents,  and  all  reasona- 
ble expectations  of  profits,  are  insurable  interests.  Interest  does  not  ne- 
cessarily imply  a  right  to,  or  property  in,  the  subject  insured. 

29.  What  is  a  re-assurance  ?  —  278 

It  is  where  after  an  insurance  has  been  made,  the  insurer  hath  the 
entire  sum  re-assured  to  him,  by  some  other  insurer.  The  first  insurer 
may  re-assure  to  the  same  amount ;  but  the  better  opinion  is  that  he  cannot 
insure  the  premium  due  him  for  the  first  insurance.  The  insured  may 
ikewise  insure  the  solvency  of  the  first  insurer. 

30.  What  is  a  double  insurance  ? — 280 

It  is  where  the  insured  makes  two  insurances  on  the  same  risk,  and 
the  same  interest.  But  the  law  will  not  allow  him  to  receive  a  double 
satisfaction,  though  he  may  sue  on  both  the  policies.  The  underwriters 
on  both  the  policies  are  bound  to  contribute  ratably  towards  the  loss. 

31.  What  is  the  rule  for  contribution  in  cases  of  double  insurance  ? 
—281 

It  was  declared  by  the  Circuit  Court  of  the  United  States  at  Philadel- 
phia, Thurston  v.  Koch,  that  the  insurers  pay  according  to  the  rate  of  their 
subscriptions,  without  regard  to  the  order  of  time  in  which  the  policies 
were  made,  and  if  the  insured  recovers  his  whole  loss  from  one  set  of  un- 
derwriters, they  will  be  entitled  to  their  action  against  the  other  insurers, 
on  the  same  interest  and  risk,  for  a  ratable  proportion  of  the  loss.  The 
French  rule  is,  that  if  there  exist  several  contracts  of  insurance  on  the 
same  interest  and  risk,  and  the  first  policy  covers  the  whole  value  of  the 


156  KENT'S  COMMENTARIES,  [VOL.  in. 

subject,  it  bears  the  whole  loss,  and  the  subsequent  insurers  are  discharged 
on  returning  all  but  one  half  per  cent,  premium.  The  ancient  rule  in  Eng- 
land was  according  to  the  French  ordinance. 

32.  What  if  two  policies  be  dated  on  the  same  day  ? — 281 
The  policy  first  in  point  of  fact,  must  bear  the  loss. 

33.  What  is  the  usage  of  the  companies  in  New  York,  in  regard  to  par- 
tial losses  ?— 281 

That  they  are  to  be  apportioned  between  the  policies,  without  regard 
to  dates,  provided  the  cargo  on  board  was  large  enough  to  have  attached 
both  policies.  This  is  the  French  rule. 

34.  What  is  a  representation  ?— 282 

It  is  a  communication  of  the  facts  and  objects  which  are  to  deter- 
mine the  will  of  the  insurer. 

35.  What  are  the  effects  of  a  misrepresentation  ? — 282 

It  is  an  established  principle,  that  a  misrepresentation  to  the  under- 
writer, or  the  concealment  of  a  fact  material  to  the  risk,  will  avoid  the 
policy.  A  representation  to  the  first  underwriter,  in  favour  of  the  risk, 
extends  to  all  subsequent  underwriters.  This  rule  is  strictly  confined  to 
representations  made  to  the  first  underwriter,  and  does  not  extend  to  in- 
termediate ones.  Nor  does  it  extend  to  a  subsequent  underwriter  on  a 
different  policy,  though  on  the  same  vessel,  and  against  the  same  risks. 

36.  What  is  meant  by  the  warranty  of  seaworthy  1 — 287 

That  the  vessel  is  competent  to  resist  the  ordinary  attacks  of  wind 
and  weather,  and  is  competently  equipped  and  manned  for  the  voyage,  with 
a  sufficient  crew,  and  with  sufficient  means  to  sustain  them,  and  with  a 
captain  of  general  good  character  and  nautical  skill.  This  warranty  of 
seaworthiness  relates  to  the  commencement  of  the  risk,  and  the  warranty 
is  not  broken  if  she  becomes  unseaworthy  afterwards. 

37.  What  is  the  effect  of  the  breach  of  the  implied  warranty  of  sea- 
worthiness in  the  course  of  the  voyage  ?— 288 

It  has  no  retrospective  operation,  and  does  not  destroy  a  just  claim  to 
damages  for  losses  occurring  prior  to  the  breach  of  this  implied  condition. 

38.  How  is  every  warranty  considered  ? — 288 

As  a  part  of  the  contract,  and  is  either  express  or  implied.  If  it  be 
an  express  warranty,  it  must  appear  on  the  face  of  the  policy.  It  requires 
a  strict  and  literal  performance.  Whether  the  thing  warranted  be  mate- 
rial or  not,  and  whether  the  loss  happened  by  reason  of  a  breach  of  the 
warranty,  or  did  not,  is  immaterial.  A  breach  of  it  avoids  the  contract 
ab  initio. 


LEC.  XLVIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  157 

39.  What  is  the  effect  of  a  survey  1 — 289 

If  it  be  made  within  a  reasonable  time  after  the  determination  of  the 
voyage,  and  if  the  survey  states  that  the  vessel  was  condemned  solely  on 
account  of  rottenness  existing  at  the  time  of  the  survey,  it  is  a  conclusive 
bar  to  the  assured. 

40.  What  are  the  most  usual  express  warranties  ?--289 

That  the  ship  was  safe  at  such  a  time,  or  would  sail  by  such  a  day, 
or  would  sail  with  convoy,  or  a  warranty  against  illicit  trade,  or  that  prop- 
erty insured  is  neutral. 

41.  What  are  the  risks  usually  insured  against  ? — 291 

The  general  rule  is,  that  the  insurer  charges  himself  with  all  the 
maritime  perils  that  the  thing  insured  can  meet  with  on  the  voyage  ;  but 
the  enumerated  list  may  be  enlarged  or  abridged  at  the  pleasure  of  the 
parties. 

42.  May  a  person  insure  against  a  loss  by  reason  of  the  acts  of  his 
own  government,  as  an  arrest,  or  embargo  ? — 291 

He  may,  and  there  is  no  distinction  on  this  point  between  a  foreign 
and  a  domestic  embargo  ;  if  the  embargo  intervenes  after  the  commence- 
ment of  the  risk,  it  suspends,  but  does  not  dissolve  the  contract  of  in- 
surance, and  the  insured  may  abandon  as  for  a  total  loss. 

43.  To  what  does  a  warranty  against  illicit  trade  apply  1 — 294 

Only  to  seizures  for  breaches  of  the  laws  of  trade,  and  the  commer- 
cial regulations  of  ports.  It  does  not  extend  to  seizures  for  offences 
against  the  law  of  nations,  nor  to  acts  of  lawless  violence,  though  com- 
mitted under  a  pretext  of  some  municipal  regulation  ;  nor  to  arbitrary 
seizures  under  the  pretence  of  illicit  trade,  when  in  fact  no  such  trade 
existed. 

44.  What  is  the  established  rule,  if  the  loss  of  memorandum  articles  be 
partial  ? — 299 

That  the  underwriter  pays  nothing  ;  and  it  is  partial  only,  when  part 
of  the  cargo  arrives  in  safety,  however  deteriorated  in  value,  though 
another  part  of  the  cargo  had  been  wholly  destroyed  by  disasters  on  the 
voyage. 

45.  What  are  the  usual  perils  covered  by  the  policy  ? — 299 

All  those  natural  perils  and  operations  of  the  elements  which  occur 
without  the  intervention  of  human  agency,  and  which  the  prudence  of 
man  could  not  foresee,  nor  his  strength  resist. 

46.  Is  the  destruction  of  the  ship  by  worms  within  perils  of  the  sea 
insured  against  ? — 300 


158  KENT'S  COMMENTARIES,  [VOL.  in. 

It  is  not ;  nor  the  loss  of  an  anchor  by  the  friction  of  rocks,  nor  the 
diminution  of  liquids  by  ordinary  leakage,  nor  hemp  taking  fire  in  a  state 
of  effervescence,  nor  injury  done  to  the  ship  by  rats. 

47.  After  what  length  of  time,  shall  a  missing  vessel  be  presumed  to 
have  perished  by  the  perils  of  the  sea? — 301 

There  is  no  precise  time  fixed  by  the  English  law.  In  the  French 
law,  a  vessel  not  heard  from  is  presumed  to  have  been  lost,  after  the  ex- 
piration of  one  year,  in  ordinary  voyages,  and  two  in  long  ones.  By  the 
ordinance  of  Hamburg,  a  ship  was  presumed  to  be  lost,  if  bound  to  any 
place  in  Europe,  and  not  heard  from  in  three  months,  and  by  the  Recopi- 
lacion  des  Loyes  de  Indias,  in  Spain,  if  not  heard  from  within  a  year  and 
a  half.  In  the  case  of  missing  vessels,  the  loss  is  presumed  to  have  hap- 
pened immediately  after  the  date  of  the  last  news. 

48.  If  a  ship  be  driven  ashore  by  the  wind,  and  in  that  situation  is  cap- 
tured by  an  enemy,  to  which  is  her  loss  attributed  1 — 302 

To  the  capture  ;  for  the  peril,  whatever  it  may  be,  upon  which  the 
policy  attaches,  must  be  the  proximate,  and  not  the  remote  cause  of  the 
loss. 

49.  What  if  a  partial  loss  be  followed  by  a  total  loss  1 — 302 
The  former  may  be  considered  as  merged  in  the  latter. 

50.  Are  the  wages  and  provisions  of  the  crew,  during  the  necessary 
detention  of  the  vessel  for  repairs,  requisite  in  the  course  of  the  voyage, 
by  reason  of  the  perils  insured  against,  considered  as  included  in  the 
perils  of  the  sea  ?  —  302 

By  the  rule  and  practice  of  these  United  States  they  are,  and  made 
chargeable  upon  the  insurer. 

51.  What  do  the  enumerated  perils  of  pirates,  rovers,  and  thieves,  in- 
clude ? — 303 

• 

The  wrongful  and  violent  acts  of  individuals,  whether  in  the  open 
character  of  felons,  or  the  character  of  a  mob,  or  a  mutinous  crew,  or  as 
plunderers  of  shipwrecked  goods  on  shore. 

52.  To  what  does  the  stipulation  of  indemnity  against  all  takings  at  sea, 
arrests,  restraints,  and  detainments   of  all   kings,  princes,  and  people, 
refer  ?— 303 

Only  to  the  acts  of  government  for  government  purposes,  whether 
right  or  wrong. 

53.  What  is  the  effect  of  an  arrest  in  the  domestic  port  ? — 303 

If  made  after  the  voyage  is  commenced  it  justifies  an  abandonment ; 


LEC.    XLVIII.]  REDUCED    TO    QUESTIONS    AND   ANSWERS.  159 

but  if  made  before  the  risk  commenced,  the  contract  is  discharged.  An 
arrest  by  admiralty  process,  at  the  instance  of  an  individual,  on  a  private 
claim,  is  not  a  case  within  the  policy. 

54.  How  far  is  the  insurer  liable  under  the  insurance  against  fire  ?— 304 

It  is  held,  that  if  the  ship  be  burnt  under  justifiable  circumstances,  to 
prevent  capture,  or  from  an  apprehension  of  a  contagious  disease,  the  in- 
surer is  liable.  If  sails  and  rigging,  put  on  shore  while  the  vessel  is  re- 
pairing at  a  foreign  port,  be  burnt,  they  are  covered  by  the  policy.  It  has 
likewise  been  held,  after  a  learned  discussion,  that  the  insurer  is  answera- 
ble for  a  loss  by  fire  occasioned  by  the  negligence  of  the  master  and 
mariners. 

55.  What  is  barratry  ?— 304 

It  means  fraudulent  conduct  on  the  part  of  the  master,  in  his  char- 
acter of  master,  or  of  the  mariners,  to  the  injury  of  the  owner,  and  without 
his  consent,  and  it  includes  every  breach  of  trust  committed  with  dishonest 
views.  Barratry  is  used  by  the  French  writers  in  a  larger  sense,  as  com- 
prehending negligence,  as  well  as  misconduct. 

56.  What  time  is  included  in  a  policy,  at  and  from  ? — 307 

All  the  time  the  ship  is  in  port  after  the  policy  is  subscribed,  if  the 
ship  be  at  home  ;  and  if  abroad,  it  commences,  according  to  a  decision  in 
Pennsylvania,  only  from  the  time  she  has  been  moored  twenty-four  hours 
in  safety  after  her  arrival.  But  if  a  ship  be  expected  to  arrive  at  a  foreign 
port,  <ind  be  insured  at  and  from  that  place,  or  from  her  arrival  there,  other 
cases  say,  the  risk  attaches  from  her  first  arrival.  The  risk  continues 
during  quarantine,  though  after  the  twenty-four  hours. 

57.  What  if  the  policy  be  to  a  country  generally,  as  to  Jamaica  ? — 308 

The  risk  ends  at  the  first  port  made  for  the  purpose  of  unloading, 
after  the  vessel  has  been  moored  there  twenty-four  hours  in  safety.  But 
in  France,  where  insurances  are  generally  made  to  the  French  West  India 
Islands,  the  risk  continues  until  the  cargo  is  discharged  at  the  last  place 
of  destination. 

58.  At  what  time  does  the  risk  begin  in  insurances  on  freight  ? — 311 

Usually  from  the  time  the  goods  are  sent  on  board,  and  not  before. 
But  if  the  ship,  sailing  under  contract,  be  lost  on  her  way  to  the  port  of 
lading,  or  at  the  port  of  lading  to  which  she  had  arrived  in  ballast,  before 
any  goods  are  put  on  board,  or  when  part  only  of  the  cargo  is  on  board, 
and  preparation  making  to  receive  passengers,  the  insurer  on  freight  and 
passage  money  is  liable. 

59.  What  is  the  effect  of  deviation  ? — 312 

If  the  vessel  departs  voluntarily,  and  without  necessity,  from  the 


160  KENT'S  COMMENTARIES,  [VOL.  m. 

usual  course  of  the  voyage,  the  insurer  is  discharged  ;  not  indeed  from 
loss  occurring  previous  to  the  deviation,  but  from  all  subsequent  losses. 
Any  stoppage  on  the  high  seas,  except  for  the  purpose  of  saving  life,  is  a 
deviation,  and  will  discharge  the  underwriter. 

60.  What  if  there  be  several  ports  of  discharge  mentioned  in  the  policy, 
and  the  insured  goes  to  more  than  one  ? — 314 

He  must  go  to  them  in  the  order  in  which  they  are  named  in  the 
policy,  or  if  they  be  not  specifically  named,  he  must  generally  go  to  them 
in  the  geographical  order  in  which  they  occur. 

61.  What  if  the  ship  quits  from  necessity,  the  course  described  in  the 
policy?— 315 

She  must  pursue  such  new  voyage  of  necessity,  in  the  direct  course, 
and  in  the  shortest  time,  or  it  will  amount  to  a  deviation. 

62.  What  if  the  vessel  have  liberty  to  carry  letters  of  marque?— 315 

She  may  deviate  for  the  purpose  of  defence,  but  not  for  the  purpose 
of  capture.  In  Haven  v.  Holland,  (2  Mason's  Rep.,  230,)  a  pretty  enlarged 
discretion,  for  the  purpose  of  capture,  was  confided  to  the  captain,  as  to 
the  best  mode  of  defence,  and  it  was  held,  that  the  letter  of  marque  might 
chase  and  capture  hostile  vessels  in  sight,  in  the  course  of  the  voyage. 
If  liberty  be  given  her  to  chase  and  capture,  that  will  not  enable  her  to 
convoy  her  prize  into  port ;  and  to  cruise  for  six  weeks,  means  six  con- 
secutive weeks,  and  not  at  different  times. 

• 

63.  What  is  a  total  loss  within  the  meaning  of  the  policy? — 318 

It  may  arise  either  by  the  total  destruction  of  the  thing  insured,  or, 
if  it  specifically  remains,  by  such  damage  to  it  as  renders  it  of  little  value. 
A  loss  is  said  to  be  total  if  the  voyage  be  entirely  lost  or  defeated,  or  not 
worth  pursuing,  and  the  projected  adventure  frustrated.  It  is  a  construc- 
tive total  loss  if  the  thing  insured,  though  existing  in  fact,  is  lost  for  any 
beneficial  purpose  to  the  owner. 

64.  What  is  the  effect  of  an  abandonment  ? — 319 

It  has  a  retrospective  effect,  and  does  of  itself,  and  without  any  deed 
of  cession,  transfer  the  right  of  property  to  the  insurer  to  the  extent  of  the 
insurance. 

65.  Within  what  time,  after  information  of  the  loss,  must  the  abandon- 
ment be  made,  in  order  to  charge  the  underwriter  with  a  constructive  total 
loss?— 319 

As  soon  as  the  insured  is  informed  of  the  loss,  he  ought  (after  being 
allowed  a  reasonable  time  to  inspect  the  cargo,  and  for  no  other  purpose,) 
to  determine  promptly  whether  he  will  elect  to  abandon  ;  and  he  cannot 
lie  by  to  speculate  on  events. 


LEC.    XLVIII.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  161 

"  The  reasonable  time  forgiving  notice  of  abandonment  depends  upon 
circumstances,  and  five  days  delay  after  intelligence  received  has  been 
held  to  late.  — 5  Maule  <$•  Selw.  47." 

66.  What  kind,  or  extent  of  loss  will  constitute  the  right  to  abandon  ? 


—321 


Any  case  of  extreme  hazard,  and  of  probable  expense,  exceeding 

one  half  the  value  of  the  ship,  though  it  should  happen  that  she  was  after- 

wards recovered  at  a  less  expense.     Such  are  the  common  cases  of  total 

>sses  by  embargoes,  by  captures,  and  by  restraints,  and   detainments  of 

The  right  to  abandon  exists   when   the  ship,  for   all  the  useful 

purposes  of  the  voyage,  is  gone  from  the  control  of  the  owner  ;  as  in  the 

cases  of  submersion,  or  shipwreck,  or  capture. 

The  right  of  abandonment  is  to  be  judged  of  by  all  the  circumstances 
ol  each  particular  case,  and  there  is  no  general  rule  that  the  injury  to  the 
ship  must  in  all  cases  exceed  one  half  of  her  value,  to  justify  an  abandon- 
ment.—  3  Mason's  Rep.  27. 

67    In  what  cases  does  the  French  ordinance  of  the  marine,  allow  of 
an  abandonment?  —  322 

In  cases  of  capture,  shipwreck,  stranding  with  partial  wreck,  disabil- 

the  vessel   occasioned  by  perils  of  the  sea,  arrest  by  a  foreign 

power,  or  arrest  on  the  part  of  the   government  of  the  insured  after  the 

:ommencement  of  the  voyage,  and  a  loss  or  damage  of  the  property  insu- 

red, if  amounting  to  at  least  three-fourths  of  its  value. 

68.  What  is  shipwreck  ?  —  323 

There  are  two  kinds,    1.  When  the  vessel  sinks  or  is  dashed  to 
2.  When  she  is  stranded,  that  is,  when  she  is  grounded  and  fills 
with  water. 

69.  What  is  the  general  rule  as  to  abandonment  ?—  329 

That  if  the   ship  be  so  injured  by  perils  as  to   require  repairs  to  the 
extent  of  more  than  one  half  of  her  value,  the  insured  may  abandon  ;  for 
ship  or  cargo  be  damaged,  so  as  to  diminish  their  value  above  one  half 
they  are  said  to  be  lost. 


mo™, 


If  the  insurance  be  upon  different  kinds  of  goods  indiscriminately,  or 

3  one  entire  parcel,  it  is  then  an  insurance  upon  an  integral  subject,  and 

an  abandonment  of  part  only  cannot  be  made.     But  if  the  articles  be  sep- 

arately specified  and  valued,  it  has  been  considered  so  far  in  the  nature  of 

.  distinct  insurance  on   each  parcel,  that  the  insured   was  allowed  to  re- 

cover for  a  total  loss  of  the  damaged  parcel.     The  meaning  of  the  words 

in  the  rule,  «  one  half  of  the  value,"  has  been  held  to  be,  the  half  of  the 

r>  i 


162  KENT'S  COMMENTARIES.,  [VOL.  in. 

general  market  value  of  the  vessel,  at  the  time  of  the  disaster,  and  not 
her  value  for  any  particular  voyage,  or  purpose.  It  has  been  considered, 
that  the  three  objects  of  insurance,  vessel,  cargo,  and  freight,  stand  on  the 
same  ground  as  to  a  total  loss  by  deterioration  to  more  than  one  half  of  the 
value. 

71.  What  is  the  rule  for  ascertaining  the  value  of  the  ship,  and  the 
quantum  of  expense  or  injury  ? — 330 

The  valuation  in  the  policy  is  conclusive  in  case  of  a  total  loss,  but 
in  some  respects,  it  is  inapplicable  for  the  purpose  of  ascertaining  the 
quantum  of  injury,  in  case  of  a  partial  loss  of  goods.  The  rule  in  that 
case  is,  to  ascertain  the  amount  of  injury  by  the  difference  between  the 
gross  proceeds  of  the  sound  and  damaged  goods. 

72.  What  is  the  doctrine,  as  regards  the  freight  of  an  abandoned  ship  1 
—333 

It  has  been  a  controverted  question,  whether  an  abandonment  of  the 
ship  transferred  the  freight  in  whole  or  in  part.  It  was  finally  settled  in 
the  jurisprudence  of  New  York  and  of  Massachusetts,  and  adopted  as  the 
true  rule  in  the  Circuit  Court  of  the  United  States  for  Massachusetts,  that 
on  an  accepted  abandonment  of  the  ship,  the  freight  earned  previous  to  the 
disaster  was  to  be  retained  by  the  owner,  or  his  representative,  the  insurer 
on  the  freight,  and  apportioned  pro  rata  itineris.  This  litigious  question 
has  now  been  settled  in  England  ;  and  in  Case  v.  Davidson,  (5  Maule  <£• 
Selw.  79.  S.  C.  affirmed  on  error,  2  Brod.  Bing.  379.  In  this  case  the 
court  did  not  make  any  distinction  between  the  freight  earned  as  a  pro 
rata  freight,  antecedent  to  the  abandonment,  and  that  earned  afterwards, 
but  the  entire  freight  was  held  to  pass  with  the  transfer  of  the  ship. 
Where  ship  and  freight  were  separately  insured,  and  each  subject  aban- 
doned as  for  a  total  loss,  it  was  adjudged  that  the  abandonment  of  the  ship 
transferred  the  freight  as  incident,  and  that  an  abandonment  was  equiva- 
lent to  a  sale  of  the  ship  to  the  abandonee.  The  French  new  code  of 
commerce  declared  that  the  freight  of  goods  saved,  though  paid  in  advance 
went,  upon  abandonment,  to  the  insurer  on  the  ship.  The  construction 
given  to  the  code  by  the  Royal  Court  at  Rennes,  in  1822,  in  the  case  of 
Blaize  v.  Company  of  General  Assurance  at  Paris,  was,  that  the  future 
freight  did  not  go  to  the  insurer  on  the  ship,  but  only  the  freight  on  the 
goods  saved  and  already  earned  at  the  time  of  the  loss. 

73.  What  is  the  rule  for  the  adjustment  of  partial  losses  ?— 334 

In  an  open  policy  the  general  rule  is,  that  the  actual  or  market'  value 
of  the  subject  insured,  is  to  be  estimated  at  the  time  of  the  commence- 
ment of  the  risk.  In  Gahn  v.  Broome,  the  invoice  price  was  adopted  as 
the  most  stable  and  certain  evidence  of  the  actual  value  ;  but  in  Le  Roy 
v.  The  United  Insurance  Company,  the  invoice  price  was  understood  to  be 
equivalent  to  the  prime  cost,  and  that  was  commonly  the  market  value  of 
the  subject  at  the  commencement  of  the  risk.  The  English  Court  of 


LEC.  XLVI.]  REDUCED  TO  QDESTIOXS  AND  ANSWERS.  163 

King's  Bench,  in  Usher  v.  Noble  pursued  in  effect,  the  same  rule,  by  es- 
timating a  loss  on  goods  in  an  open  policy,  at  the  invoice  price  at  the 
loading  port, -and  taking- with  that  the  premium  of  insurance,  and  com- 
mission, as  the  basis  of  the  calculation.  If  goods  arrive  damaged  at  the 
place  of  destination,  the  way  to  ascertain  the  quantity  of  the  damage 
either  in  open  or  valued  policies,  is  to  compare  the  market  price  or  gross 
amount  of  the  damaged  goods,  with  the  market  price  or  gross  amount  at 
which  the  same  goods  would  have  sold  if  sound. 

74.  What  is  the  rule,  as  to  return  of  premium  ? — 341 

If  the  insurance  be  void  ab  initio,  or  the  risk  has  not  been  commen- 
ced, the  insured  is  entitled  to  a  return  of  premium.  If  the  insurance  be 
made  without  any  interest  whatsoever  in  the  thing  insured,  and  this  pro- 
ceeds through  mistake,  or  misinformation,  or  any  other  innocent  cause,  the 
premium  is  to  be  returned.  If  the  risk  has  not  been  run,  whether  it  be 
owing  to  the  fault,  or  pleasure,  or  will  of  the  insured  or  to  any  other 
cause,  the  premium  must  be  returned.  If  the  vessel  never  sailed  on  the 
voyage  insured,  or  the  policy  became  void  by  failure  of  the  warranty,  and 
without  fraud,  the  policy  never  attached ;  but  if  the  risk  has  once  com- 
menced, though  the  voyage  be  immediately  thereafter  abandoned,  there  is 
to  be  no  return  or  apportionment  of  premium.  And  if  the  premium  is  re- 
turned, it  is  the  usage  in  every  country  Avhere  it  is  not  otherwise  ex- 
pressly stipulated  in  the  policy,  for  the  insurer  to  retain  one  half  per  cent, 
by  way  of  indemnity  for  his  trouble  and  concern  in  the  transaction. 


LECTURE    XL  IX. 
OF  MARITIME  LOANS. 

1 .  What  are  maritime  loans  called  ? — 352 
Contracts  of  bottomry  and  respondentia. 

2.  What  is  a  bottomry  bond  ? — 354 

It  is  a  loan  upon  the  ship  and  freight,  and  is  in  the  nature  of  a  mort- 
gage, by  which  the  ship-owner,  or  master  on  his  behalf,  pledges  the  ship 
as  security  for  money  borrowed  ;  and  it  covers  the  whole  freight  of  the 
voyage,  from  the  port  of  departure  to  the  port  of  destination. 

3.  What  is  a  respondentia  bond  1 — 354 

It  is  a  loan  upon  the  pledge  of  the  cargo,  though  an  hypothecation  of 


164  KENT'S  COMMENTARIES,  [VOL.  in. 

both  ship  and  cargo  may  be  made  in  one  instrument ;  and  generally,  it  is 
only  a  personal  obligation  upon  the  borrower,  and  is  not  a  specific  lien 
upon  the  goods,  unless  there  be  an  express  stipulation  to  that  effect  in  the 
bond,  and  it  amounts  at  most,  to  an  equitable  lien  on  the  salvage  in  case 
of  loss.  The  condition  of  the  loan  is,  the  safe  arrival  of  the  subject 
hypothecated,  and  the  entire  principal,  as  well  as  interest,  is  at  the  risk  of 
the  lender  during  the  voyage;  and  if  the  subject  arrives  safe  or  if  it  shall 
not  have  been  injured,  except  by  its  own  defect,  or  the  fault  of  the  mas- 
ter or  mariners,  the  borrower  must  return  the  sum  borrowed,  together  with 
the  maritime  interest  agreed  on,  and  for  the  repayment,  the  person  of  the 
borrower  is  bound,  as  well  as  the  property  pledged. 

4.  When  can  the  master  of  a  ship  take  up  money  on  respondentia  or 
bottomry  ? — 356 

The  general  rule  is,  that  this  power  exists  only  after  the  voyage  has 
commenced,  and  is  to  be  exercised  in  some  foreign  port  where  the  owner 
does  not  reside.  The  master  cannot  hypothecate  for  a  pre-existing  debt, 
and  the  necessity  of  the  loan  must  be  shown  to  have  existed  at  the  time  it 
was  made,  and  that  the  master  had  no  other  means  of  raising  the  money 
at  maritime  interest ;  and  when  that  fact  is  established,  the  misapplication 
of  it  by  the  master,  without  the  knowledge  and  assent  of  the  lender,  will 
not  effect  its  validity. 

5.  What  if  after  money  has  been  taken  up  on  respondentia,  and  before 
the  risk  commenced,  the  voyage  is  broken  up  ? — 357 

The  marine  interest  depends  entirely  upon  the  risk,  and  therefore,  if 
the  proposed  voyage  be  abandoned  before  the  risk  has  attached  the 
contract  is  turned  into  a  simple  and  absolute  loan  at  ordinary  and  legal 
interest. 

6.  What  if  the  borrower  had  not  goods  on  board  the  ship  to  the  value 
of  the  sum  borrowed  ? — 357 

The  contract,  in  case  of  loss,  is  reduced  in  proportion  to  the  dimin- 
ished value,  and  the  borrower  is  bound  at  all  events  to  return  the  surplus 
of  the  sum  borrowed  with  the  ordinary  interest.  The  maritime  interest  is 
in  a  ratio  to  the  maritime  risk,  or  value  of  the  goods  shipped. 

7.  Why  is  it,  that  a  bond  fairly  given  at  a  foreign  port,  under  pressure 
of  necessity,  is  entitled  to  priority  of  payment  over  one  of  a  former  date  ? 
—358 

The  equity  of  it  consists  in  this,  that  the  last  loan  furnished  the  means 
of  preserving  the  ship,  and  without  it,  the  former  lenders  would  entirely 
have  lost  their  security,  and  therefore  it  supersedes  a  prior  mortgage  as 
well  as  any  other  prior  lien. 

8.  May  the   lender  upon  respondentia  or  b'ottomry,  insure  the  money 
lent? -358 

He  can  insure  the  principal,  but  not  his  maritime  interest. 


LEC.   XLIX.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  165 

9.  Will  a  constructive  total  loss  discharge  the  borrower  on  bottomry  ? 
—359 

It  will  not.  Nothing  but  an  utter  annihilation  of  the  subject  hypothe- 
cated will  discharge  him. 

10.  What  is  the  rule  as  to  the  liability  of  the  lender  on  bottomry  we 
jespondentia  to  contribute  in  case  of  general  average  ? — 360 

In  England,  except  on  India  risks,  the  lender  does  not  contribute. 
This  is  contrary  to  the  maritime  law  of  France  and  of  other  parts  of 
Europe,  and  in  Louisiana  we  have  a  decision  against  it.  The  new  French 
law,  contrary  to  the  ordinance  of  1681,  charges  the  lender  with  simple 
average,  on  partial  losses,  unless  there  be  a  positive  stipulation  to  the  con- 
trary ;  but  such  a  stipulation  to  exempt  him  from  gross  or  general  average, 
would  be  void  and  contrary  to  natural  equity. 

11.  What  if  the  ship  or  cargo  be  lost,  not  by  perils  of  the  sea,  but  by 
default  of  the  borrower  or  master  ? — 360 

The  hypothecation  bond  is  forfeited  and  must  be  paid. 

12.  What  if  the  ship  be  lost  on  the  voyage,  and  the  cargo  forwarded 
by  another  ship  ? — 360 

The  borrowers  in  that  case  must  pay  the  debt. 

13.  Is  a  loan  on  bottomry  or  respondentia  good,  if  the  ship  or  goods  be 
already  at  sea  when  it  is  effected  ? — 361 

It  has  been  held  good  by  the  Supreme  Court  of  the  United  States. 

14.  When  does  the  maritime  interest  cease  ? — 362 

After  the  risk  has  ceased  by  the  safe  arrival  of  the  ship,  marine  in- 
terest ceases,  and  gives  place  to  ordinary  legal  interest,  on  the  aggregate 
amount  of  the  debt  due,  consisting  of  the  money  lent  with  maritime 
premium. 

15.  Are  seamen's  wages   a  legal  subject  for  bottomry  or  respondentia 
loans  ? — 363 

They  are  not. 

16.  What  if  a  bottomry  contract  be  made  payable  to  order  or  bearer  ? 
—363 

It  is  negotiable  like  a  bill  of  exchange,  and  it  is  to  be  dealt  with 
and  protested  in  like  manner. — Boulay  Paty,  3.  97. 


166  KENT'S  COMMENTARIES,  [VOL.  in. 

LECTURE    L. 
OF  INSURANCE  OF  LIVES  AND  AGAINST  FIRE. 

1.  What  is  the  nature  of  the  contract  of  insurance  upon  lives  ? — 365 

These  are  liberal  contracts,  and  while  they  create  an  advantageous 
investment  of  capital,  they  operate  benevolently  towards  the  public.  Their 
usual  purpose  is  to  provide  a  fund  for  creditors,  or  for  family  connexions 
in  case  of  death.  The  insurer,  in  consideration  of  a  sum  in  gross,  or  of 
periodical  payments,  undertakes  to  pay  a  certain  sum,  or  an  annuity,  de- 
pending upon  the  death  .of  a  person  whose  life  is  insured.  The  insurance 
is  either  for  the  whole  term  of  life,  or  for  a  limited  period.  Such  is  the 
nature  of  these  contracts,  that  they  are  well  calculated  to  relieve  the  more 
helpless  members  of  a  family  from  a  precarious  dependence,  resting  upon 
the  life  of  a  single  person  ;  and  they  very  naturally  engage  the  attention 
and  influence  the  judgment  of  those  thinking  men,  who  have  been  accus- 
tomed to  reflect  deeply  upon  the  past,  and  to  form  just  anticipations  of  the 
future. 

2.  When  did  life  insurance  in  England  commence  ? — 367 

With  the  Amicable  Society,  in  the  beginning  of  the  last  century  ;  and 
in  1827,  there  were  in  the  United  Kingdom,  forty- four  life  insurance 
companies. 

3.  What  is  undertaken  by  the  underwriter,  on  an  insurance  against 
fire  ?— 370 

He  undertakes,  in  consideration  of  the  premium,  to  indemnify  the 
insured  against  all  losses  in  his  houses,  buildings,  furniture,  ships  in  port, 
or  merchandise,  by  means  of  accidental  fire  happening  within  a  prescribed 
period. 

4.  What  is  a  sufficient  interest  in  the  property  to  support  an  insurance 
against  fire  ? — 371 

A  creditor  may  have  a  policy  on  the  house  and  goods  of  his  debtor, 
upon  which  he  has  a  lien  or  mortgage  security.  So,  a  trustee,  or  agent, 
or  factor,  who  has  the  custody  of  goods  for  sale  on  commission,  may  insure 
them,  and  a  bonafide  equitable  interest  may  be  insured. 

5.  What  is  the  insured  bound  in  good  faith  to  disclose  to  the  insurer  ? 
—373 

Every  fact  material  to  the  risk  and  within  his  knowledge,  and  which 
if  stated,  would  influence  the  mind  of  the  insurer  in  making  or  declining 
.the  contract. 


LEG.  LI.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  167 

6.  What  species  of  property  are  not  deemed  objects  of  insurance  ? — 373 

Books  of  accounts,  written  securities,  or  evidence  of  debt,  title  deeds, 
writings,  money,  or  bullion.  Nor  are  jewels,  plate,  medals,  paintings, 
statuary,  sculptures,  and  curiosities  included  unless  specified.  t 

7.  What  is  the  rule  as  to  the  assignment  of  policies  ? — 375 

Fire  policies  usually  contain  a  prohibition  against  the  assignment  of 
them,  without  the  previous  consent  of  the  company.  But  without  this 
clause,  they  are  assignable  in  equity  like  other  choses  in  action,  though 
to  render  the  assignment  of  any  value  to  the  assignee,  an  interest  in  the 
subject  matter  of  the  insurance  must  be  assigned  also.  This  restriction 
upon  assignments  of  the  policy,  applies  only  to  transfers  before  a  loss 
happens,  and  it  applies  only  to  voluntary  sales,  and  not  to  sales  on  execu- 
tion. If  buildings  insured  be  mortgaged,  the  policy  is  ipso  facto  assigned 
by  the  mortgage. 

8.  How  are  settlements  of  losses  by  fire  made  ? — 375 

They  are  made  on  the  principle  of  particular  average,  and  the  esti- 
mated loss  is  paid  without  abandonment  of  what  has  been  saved.  Dam- 
ages and  reasonable  charges  on  removing  at  a  fire,  articles  insured,  are 
covered  by  the  policy. 

9.  How  are  losses  certified  ? — 376 

Upon  oath,  and  the  certificate  of  a  magistrate,  notary,  or  clergyman, 
is  made  necessary  to  be  procured  in  favour  of  the  truth  and  fairness  of 
the  statement  of  the  loss,  and  a  strict  and  literal  compliance  with  the  terms 
of  the  conditions  is  held  indispensable  to  the  right  of  recovery. 


LECTURE    LI. 
OF  THE  FOUNDATION  OF  TITLE  TO  LANDS. 

1.  Upon  the   introduction  of  the  feudal  tenures,  what  became  a  funda- 
mental maxim  of  the  English  law  in  relation  to  title  to  land  ?— 378 

That  the  king  was  the  original  proprietor  of  all  the  land  in  the  king- 
dom, and  the  only  true  source  of  title.  In  this  country  we  have  adopted 
the  same  principle,  and  applied  it  to  our  own  republican  governments:  and 
it  is  a  settled  fundamental  doctrine  with  us,  that  all  valid  individual  title  to 


168  KENT'S  COMMENTARIES,  [VOL.  in. 

land  within  the  United  States,  is  derived  from  the  grant  of  our  local  gov- 
ernments, or  from  the  United  States,  or  from  the  crown  or  royal  chartered 
governments,  established  here  prior  to  the  revolution.  This  doctrine  was 
declared  in  New  York,  in  the  case  of  Jackson  v.  Ingraham,  and  it  was 
held  to  be  the  settled  rule,  that  the  courts  could  not  take  notice  of  any  title 
not  derived  from  our  own  state  or  colonial  government,  and  duly  verified 
by  patent. 

2.  By  what  right  did  the  European  nations  claim  to  have  dominion  on 
this  continent?— 378 

By  right  of  prior  discovery,  which  discovery  was  considered  to  have 
given  to  the  government  by  whose  subjects  or  authority  it  was  made,  a  title 
to  the  country,  and  the  sole  right  of  acquiring  the  soil  from  the  natives,  as 
against  all  other  European  powers.  Each  nation  claimed  the  right  to 
regulate  for  itself,  in  exclusion  of  all  others,  the  relation  which  was  to  sub- 
sist between  the  discoverer  and  the  Indians.  That  relation  necessarily 
impaired,  to  a  considerable  degree,  the  rights  of  the  original  inhabitants,  and 
an  ascendency  was  asserted  in  consequence  of  the  superior  genius  of  the 
Europeans,  founded  on  civilization  and  Christianity,  and  of  their  superior- 
ity in  the  art  of  war.  The  European  nations  which  respectively  estab- 
lished colonies  in  America,  assumed  the  ultimate  dominion  to  be  in  them- 
selves, and  claimed  the  exclusive  right  to  grant  a  title  to  the  soil,  subject 
only  to  the  Indian  right  of  occupancy.  The  natives  were  admitted  to  be 
the  rightful  occupants  of  the  soil,  with  a  legal  as  well  as  a  just  claim  to 
retain  possession  of  it,  and  to  use  it  according  to  their  own  discretion, 
though  not  to  dispose  of  the  soil  at  their  will,  except  to  the  government 
claiming  the  right  of  pre-emption.  The  practice  of  Spain,  France,  Hol- 
land, and  England  proved  the  very  general  recognition  of  the  claim  and 
title  to  American  territories  given  by  discovery.  The  United  States  have 
adopted  the  same  principle,  and  their  exclusive  right  to  extinguish  the  In- 
dian title  by  purchase  or  conquest,  arid  to  grant  the  soil,  and  exercise  such 
a  degree  of  sovereignty  as  circumstances  required,  has  never  been  judici- 
ally questioned. 


LECTURE    LII. 
OF  INCORPORAL  HEREDITAMENTS. 

1.  What  are  corporal  hereditaments?— 401 

They  are  confined  to  land,  which  according  to  Lord  Coke,  includes 
not  only  the  ground  or  soil,  but  every  thing  which  is  attached  to  the  earth, 


LEG.    LII.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  169 

whether  by  the  course  of  nature,  as  trees,  herbage,  and  water,  or  by  the 
hand  of  man,  as  houses,  and  other  buildings  ;  and  which  has  an  indefinite 
extent  upwards  as  well  as  downwards,  so  a^to  include  every  thing  terres- 
trial under  or  over  it. 

2.  What  are  incorporeal  hereditaments  ? — 402 

Certain  inheritable  rights,  which  are  not,  strictly  speaking  of  a  cor- 
poreal nature  or  land,  although  they  are  by  their  own  nature,  or  by  use, 
annexed  to  corporeal  inheritances,  and  are  rights  issuing  out  of  them,  or 
concern  them.  They  pass  by  deed,  without  livery,  because  they  are  not 
tangible  rights. 

3.  What  are  the  principal  incorporeal  rights  which  .subsist  in  our  law  ? 
—403 

1.  Commons.  2.  Ways,  easements,  and  aquatic  rights.  3.  Offices. 
4.  Franchises.  5.  Annuities.  6.  Rents. 

4.  What  is  a  right  of  common  ? — 403 

It  is  a  right  which  one  man  has  in  the  lands  of  another.  The  object 
of  which  is  to  pasture  his  cattle,  or  provide  necessary  fuel  for  his  family, 
or  for  repairing  his  necessary  implements  of  husbandry.  Common  of  pas- 
ture is  known  as  common  of  pasture  appendant,  and  common  of  pasture 
appurtenant.  Common  appendant  is  founded  on  prescription,  and  is  regu- 
larly annexed  to  arable  land.  It  authorized  the  owner  or  occupier  of  the 
arable  land  to  put  commonable  beasts  upon  the  waste  grounds-of  the 
manor.  Common  appurtenant  may  be  annexed  to  any  kind  of  land,  and 
may  be  created  by  grant  as  well  as  prescription.  It  allowed  the  owner 
to  put  in  other  beasts  than  such  as  plough  or  manure  the  land.  Common 
of  estrovers  may  be  equally  appendant  or  appurtenant. 

5.  What  is  a  right  of  way  ? — 419 

It  is  a  right  of  private  passage  over  another  man's  ground,  and  may 
arise  either  by  grant  or  prescription.  It  may  arise  from  necessity  in  sev- 
eral respects.  Thus,  if  a  man  sells  land  to  another  which  is  wholly  sur- 
rounded by  his  own  land,  in  this  case  the  purchaser  is  entitled  to  a  right 
of  way  over  the  other's  ground  to  arrive  at  his  land.  This  principle  was 
carried  so  far  in  a  modern  case,  (8  Term  Rep.  50,)  as  to  be  applied  to  a 
trustee  selling  land  he  held  in  trust,  and  to  which  there  was  no  access 
but  over  the  trustee's  own  land. 

6.  What  is  the  law  as  to  riparian  rights  ? — 427 

It  is  a  settled  principle  of  the  English  law,  that  the  right  of  the  soil 
of  owners  of  land  bounded  by  the  sea,  or  on  navigable  rivers,  where  the 
tide  ebbs  and  flows,  extends  to  high-water  mark  ;  and  the  shore  below  the 
common  high-water  mark,  belongs  to  the  public  ;  and  in  England  the 
crown,  and  in  this  country  the  people,  have  the  absolute  proprietary  inter- 
est in  the  same,  though  it  may,  by  grant  or  prescription,  become  private 
22 


170  KENT'S  COMMENTARIES,  [VOL.  in, 

property.  But  grants  of  land,  bounded  on  rivers,  or  upon  the  margins  of 
the  same,  above  tide  water,  carry  the  exclusive  right  and  title  of  the  grantee 
to  the  centre  of  the  stream  ;  fmd  the  public,  in  cases  where  the  river  is 
navigable  for  boats  and  rafts,  have  an  easement  therein,  or  a  right  of 
passage  as  a  public  highway. 

7.  What  is  the  law  in  respect  to  public  highways  1 — 432 

It  is  the  same  as  that  of  fresh-water  rivers,  and  the  analogy  is  per- 
fect, as  concerns  the  right  of  soil.  The  presumption  is  that  the  owners 
of  the  land  on  each  side  go  to  the  centre  of  the  road,  and  they  have  the 
exclusive  right  to  the  soil,  subject  to  the  right  of  passage  in  the  public. 
Being  owners  of  the  soil,  they  have  a  right  to  all  ordinary  remedies  for 
the  freehold. 

8.  What  are  servitudes? — 434 

Real  rights  existing  in  the  property  of  another.  Like  incorporeal  here- 
ditaments, they  have  been  held  not  to  pass  without  grant.  By  virtue  of 
such  a  right,  the  proprietor  of  the  estates  charged  is  bound  to  permit,  or 
not  to  do,  certain  acts  in  relation  to  his  estate,  for  the  utility  or  accommo- 
dation of  a  third  person,  or  of  the  possession  of  an  adjoining  estate. 

9.  What  is  the  rule  in  respect  to  running  waters  1—439 

That  no  proprietor  has  a  right  to  use  the  water,  to  the  prejudice  of 
other  proprietors,  above  or  below  him,  unless  he  has  a  prior  right  to  divert 
it,  or  a  title  to  some  exclusive  enjoyment.  He  has  no  property  in  the  water 
itself,  but  a  simple  usufruct  while  it  passes  along.  Aqua  currit  et  debet 
currere,  is  the  language  of  the  law. 

10.  How  may  easements  be  lost  ?— 447 

A  right  acquired  by  use  may  be  lost  by  non-user,  and  an  absolute  dis- 
continuance of  the  use  affords  a  presumption  of  the  extinguishment  of 
the  right  in  favour  of  some  other  adverse  right.  As  an  enjoyment  for 
twenty  years  is  necessary  to  found  a  presumption  of  a  grant,  the  general 
rule  is,  that  there  must  be  a  similar  non-user  to  raise  the  presumption  of  a 
release. 

11.  What  is  the  distinction  between  an  easement  and  a  license  ? — 452 

A  claim  for  an  easement  must  be  founded  upon  grant  by  deed  or  writing, 
or  upon  prescription  which  supposes  one  ;  for  it  is  a  permanent  interest 
in  another's  land,  with  a  right  at  all  times  to  enter  and  enjoy  it.  But  a 
license  is  an  authority  to  do  a  particular  act,  or  series  of  acts,  upon  an- 
other's land,  without  possessing  any  estate  therein.  It  is  founded  on  per- 
sonal confidence,  and  is  not  assignable. 

12.  What  are  annuities  ?— 460 

An  annuity,  says  Lord  Coke,  is  a  yearly  sura  stipulated  to  be  paid  to 


LEC.  LII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  171 

another,  in  fee,  or  for  life,  or  for  years,  and  chargeable  only  on  the  per- 
son of  the  grantor.  If  it  be  agreed  to  be  paid  to  the  annuitant  and  his 
heirs,  it  is  a  personal  fee,  and  transmissible  by  descent,  like  a  personal 
fee.  It  is  chargeable  upon  the  person  of  the  grantor,  for  if  the  annuity 
was  made  chargeable  upon  land,  it  would  be  a  rent-charge. 

13.  What  are  rents  ?— 460 

Rent  is  a  certain  profit  in  money,  provisions/chattels,  or  labor,  issuing 
out  of  lands  and  tenements,  in  retribution  for  the  use,  and  it  cannot  issue 
out  of  a  mere  privilege  or  easement.  There  were,  at  common  law,  accord- 
ing to  Littleton,  three  kinds  of  rent,  viz.  rent-service,  rent-charge,  and 
rent-seek. 

14.  What  was  rent-service  ? — 461 

Where  the  tenant  held  his  land  by  fealty,  or  other  corporeal  service, 
and  a  certain  rent.  A  right  of  distress  was  inseperably  incident  to  this 
rent. 

15.  What  is  a  rent-charge,  or  fee-farm  rent  1— 461 

Where  the  rent  is  created  by  deed,  and  the  fee  granted  ;  and  as  there 
is  no  fealty  annexed  to  such  a  grant  of  the  whole  estate,  the  right  of  dis- 
tress is  not  an  incident,  and  it  requires  an  express  power  of  distress  to  be 
annexed  to  the  grant,  which  gives  it  the  name  of  a  rent-charge. 

16.  What  was  rent-seek,  siccus,  or  barren  rent?— 461 

It  was  rent  reserved  by  deed  without  any  clause  of  distress,  and  in  a 
case  in  which  the  owner  of  the  rent  had  no  future  interest  or  reversion  in 
the  land. 

17.  What  is  the  rule  as  to  whom  rent  must  be  reserved? — 463 

That  it  must  be  reserved  to  him  from  whom  the  land  proceeded,  or  his 
lawful  representatives,  and  it  cannot  be  reserved  to  a  stranger. 

18.  What  will  discharge  the  tenant  from  paying  the  rent  ?— 464 

If  the  tenant  be  evicted  by  title  paramount  before  the  rent  falls  due,  he 
will  be  discharged  from  the  payment.  But  if  the  lawful  eviction  by  para- 
mount title,  be  of  part  only  of  the  devised  premises,  the  rent  is  apportion- 
able,  and  the  eviction  a  bar  pro  tanto.  So,  if  there  be  an  actual  expulsion 
of  the  tenant  from  the  whole  or  part,  by  the  lessor  before  the  rent  becomes 
due,  the  entire  rent  is  suspended. 

19.  What  is  the  rule  in  cases  where  the  premises  are  destroyed,  as  by 
fire  ?  — 466 

That  upon  an  express  contract  to  pay  rent,  the  loss  of  the  premises  by 
fire  or  inundation,  or  external  violence,  will  not  exempt  the  party  from 
paying  the  rent. 


172  KENT'S  COMMENTARIES,  [VOL.  in. 

20.  What  is  the  remedy  for  the  non-payment  of  rent?— 476 

When  the  rent  is  due  and  unpaid,  and  when  no  judgment  in  a  personal 
action  has  been  had  for  the  recovery  of  the  same,  the  landlord,  upon  de- 
mand, may  enter  immediately,  by  himself  or  his  agent,  upon  the  demised 
premises,  and  distrain  any  goods  and  chattels  that  are  to  be  found  there, 
belonging  to  the  tenant  or  others. 

21.  In  what  cases  are  articles  not  distrainable  ?  —  477 

Articles  temporarily  placed  upon  land,  by  way  of  trade,  and  belonging 
to  third  persons  ;  a  horse  at  a  public  inn,  or  sent  to  a  liyery  stable  to  be 
taken  care  of,  or  corn  at  a  mill,  or  cloth  at  a  tailor  shop,  or  a  grazier's  cat- 
tle put  upon  the  land  for  the  night,  on  the  way  to  market,  or  goods  depo- 
sited in  a  warehouse  for  sale  or  on  storage,  in  the  way  of  trade,  or  goods 
of  a  principal  in  the  hands  of  a  factor  are  not  distrainable  for  rent.  Nor 
can  beasts  of  the  plough,  sheep,  or  implements  of  a  man's  trade  be  taken 
for  rent,  so  long  as  other  property  can  be  found. 


LECTURE    LIII. 
OF  THE  HISTORY  OF  FEUDAL  TENURE. 

1.  To  what  source  do  we  trace  the  origin  of  the  feudal  system  1 — 491 

To  the  Gothic  or  northern  nations.  Some  authors  have  supposed  that 
the  sources  of  feuds  were  not  confined  to  those  nations.  And  Neibuhr, 
in  his  History  of  Rome,  vol.  I.  99,  declares  the  relation  of  patron  and  cli- 
ent to  have  been  the  feudal  system  in  its  noblest  form.  The  better  and 
prevailing  opinion,  however,  is,  that  the  origin  of  the  feudal  system  is  es- 
sentially to  be  attributed  to  the  northern  Gothic  conquerors  of  the  Roman 
Empire.  It  was  part  of  their  military  policy,  and  devised  by  them  as  the 
most  effectual  means  to  secure  their  conquests.  The  chieftain,  as  head  or 
representative  of  his  nation,  allotted  portions  of  the  conquered  lands,  in 
parcels,  to  his  principal  followers,  and  they,  in  their  turn,  gave  smaller 
parcels  to  their  subtenants  or  vassals,  and  all  were  granted  on  the  same 
conditions  of  fealty  and  military  service.  The  rudiments  of  the  feudal 
law  have  been  supposed,  by  many  modern  feudists,  to  have  existed  in  the 
usages  of  the  ancient  Germans,  as  they  were  studied  and  described  by 
Caesar  and  Tacitus.  The  traces  of  the  feudal  policy  were  first  distinctly 
perceived  among  the  Franks,  Burgundians,  and  Lombards,  after  they  had 
invaded  the  Roman  provinces.  They  generally  permitted  the  Roman  in- 
stitutions to  remain  in  the  cities  and  towns,  but  they  claimed  a  proportion 


LEC.  LIU.]  REDUCED  TO  QTJESTIOXS  AND  ANSWERS.  173 

of  the  land  and  slaves  of  the  provincials,  and  brought  their  own  laws  and 
usages  with  them.  The  conquered  lands  which  were  appropriated  by 
military  chiefs  to  their  faithful  followers,  had  the  condition  of  future  mili- 
tary service  annexed,  and  this  was  the  origin  of  fiefs  and.  feudal  tenures. 
The  same  class  of  persons  who  had  been  characterized  as  volunteers  or 
companions  in  Germany,  became  loyal  vassals  under  the  feudal  grants. 
These  grants  which  were  at  first  called  benefices,  were,  in  their  origin, for 
life,  or  perhaps  only  for  a  term  of  years.  The  vassal  had  a  right  to  use 
the  land,  and  take  the  profits,  and  was  bound  to  render  in  return  such  feu- 
dal duties  and  seryjces  as  belonaed  to  military  tenure.  The  property  of 
the  soil  remainecl  in  the  lord  from  whom  the  grant  was  received.  The 
king  or  lord  had  the  dominium  rectum,  and  the  vassal  or  feudatory  the  do- 
minium  utile.  Prior  to  the  introduction  of  the  feudal  system,  lands  were 
allodial,  and  held  in  free  and  absolute  ownership  in  like  manner  as  per- 
sonal property  was  held.  Allodial  land  was  not  suddenly  but  very  gradu- 
ally supplanted  by  the  law  of  tenures.  They  were  never  so  entirely  in- 
troduced as  to  abolish  all  vestiges  of  allodial  estates.  The  precise  time 
when  benefices  became  hereditary  is  uncertain.  They  began  to  be  here- 
ditary in  the  age  of  Charlemagne,  who  facilitated  the  conversion  of  allo- 
dial into  feudal  estates.  The  perpetuity  of  fiefs  was  established  earlier  in 
France  than  in  Germany;  but  throughout  the  continent  it  appears  they 
had  become  hereditary,  and  accompanied  with  the  right  of  primogeniture, 
and  all  the  other  incidents  peculiar  to  feudal  governments,  long  before  the 
era  of  the  Norman  conquest.  England  was  distinguished  above  every 
part  of  Europe  for  the  universal  establishment  of  feudal  tenures.  There 
is  no  presumption  or  admission  in  the  English  law  of  allodial  lands. 
They  are  all  held  by  some  feudal  tenure.  There  were  traces  of  feudal 
grants,  and  of  the  relation  of  lord  and  vassal  in  the  time  of  the  Anglo- 
Saxons,  but  the  formal  and  regular  establishment  of  feudal  tenures  in  their 
genuine  character,  and  with  all  their  fruits  and  services,  was  in  the  reign 
of  William  the  Conqueror.  The  tenures  which  were  authoritively  estab- 
lished in  England  in  the  time  of  the  Conqueror  were  principally  of  two 
kinds,  according  to  the  services  annexed.  They  were  either  tenures  by 
knight  service,  in  which  the  services,  though  occasionally  uncertain,  were 
altogether  of  a  military  nature  ;  or  tenures  by  socage,  in  which  the  services 
were  defined  and  certain,  and  generally  of  a  predial  or  pacific  nature. 

The  only  feudal  fictions  and  services  which  can  be  presumed  to  exist  in 
these  United  States,  consist  of  the  feudal  principle,  that  the  lands  are  held 
of  some  superior  lord,  to  whom  the  obligation  of  fealty,  and  to  pay  a  de- 
terminate rent,  are  due. 

2.  What  is  understood  by  the  word  fealty  "fidelitatis  <"'  —  510 

An  oath  of  fidelity  to  the  lord,  and,  to  use'the  words  of  Littleton,  when 
a  freeholder  doth  fealty  to  his  lord,  he  shall  lay  his  right  hand  upon  a  book, 
and  shall  say,  "  Know  ye  this,  my  lord,  that  I  shall  be  faithful  and  true 
unto  you,  and  faith  to  you  shall  bear,  for  the  lands  which  I  claim  to  hold 
of  you,  and  that  I  shall  lawfully  do  to  you  the  customs  and  services  which 
I  ought  to  do,  at  the  terms  assigned  :  so  help  me  God  and  his  Saints." 


174 


KENT  S  COMMENTARIES, 


[VOL.  III. 


This  oath  of  fealty  every  where  followed  the  progress  of  the  feudal  sys- 
tem, and  created  all  those  interesting  ties  and  obligations  between  the 
lord  and  his  vassal,  which,  in  the  simplicity  of  the  feudal  ages,  they  con- 
sidered to  be  their  truest  and  greatest  glory.  It  was  the  parent  of  the 
oath  of  allegiance  which  is  exacted  by  sovereigns  in  modern  times. 

Lands  held  by  socage  tenure  (and  all  lands  granted  before  the  revolu- 
tion are  so  held)  would  seem,  in  theory,  to  have  been  chargeable  with  this 
oath  of  fealty. 

Sir  Mathew  Hale  says  that  the  oath  of  fealty  may  be  due  to  an  inferior 
lord,  and  then  the  oath  must  have  the  saving,  salvafde^et  ligentia  domini 
regis.  It  may  be  exacted  in  England  by  landlords,  and  lords  of  manors, 
from  tenants  other  than  tenants  at  will,  or  from  year  to  year. 


END    OF    VOLUME    THIRD. 


LEG.  XLIV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  175 


VOLUME    IV. 
OF  THE  LAW  CONCERNING  REAL  PROPERTY. 

LECTURE    XLIV. 
OF  ESTATES  IN  FEE. 

The  perusal  of  the  former  volumes  has  prepared  the  student  to  enter 
upon  the  doctrine  of  real  estates,  which  is  by  far  the  most  artificial  and 
complex  branch  of  our  municipal  law. 

In  treating  of  the  doctrine  of  real  estates,  it  will  be  most  convenient, 
as  well  as  most  intelligible,  to  employ  the  established  technical  language 
to  which  we  are  accustomed,  and  which  appertains  to  the  science. 
Though  the  law  in  some  of  the  United  States,  discriminates  between  an 
estate  in  pure  allodium,  and  an  estate  in  fee  simple  absolute,  these  estates 
mean  essentially  the  same  thing ;  and  the  terms  may  be  used  indiscrimi- 
nately to  describe  the  most  ample  and  perfect  interest  which  can  be  owned 
in  land. — 2 

1 .  Has  not  the  words  seisin  and  fee,  been  always  used  in  New  York  ? 
—2 

They  have,  whether  the  subject  was  lands  granted  before  or  since  the 
revolution;  though  by  the  act  of  1787,  the  former  were  declared  to  be  held 
by  the  tenure  of  free  and  common  socage,  and  the  latter  in  free  and  pure 
allodium,  but  this  was  an  unnecessary  distinction  in  legal  phraseology  as 
applied  to  estates  ;  and  the  distinction  lay  dormant  in  the  statute,  and  was 
utterly  lost  and  unfounded  in  practice.  The  technical  language  of  the 
common  law,  is  too  deeply  rooted  in  our  usages  and  institutions,  to  be 
materially  affected  by  legislative  enactments. 

In  Connecticut  and  Virginia,  the  terms  seisin  and  fee,  are  also  ap- 
plied to  all  estates  of  inheritance,  though  the  lands  in  those  states  are  de- 
clared to  be  allodial,  and  free  from  every  vestige  of  feudal  tenure. 

2.  What  have  the  New  York  revised  statutes  declared  on  this  subject  ? 
—3 

That  all  lands  within  the  state  are  allodial,  and  the  entire  and  abso- 
lute property  vested  in  the  owners,  according  to  their  respective  estates. 
All  feudal  tenures  of  every  description,  with  their  incidents  are  abolished, 
subject,  nevertheless,  to  the  liability  to  escheat,  and  to  any  rents  or  servi- 
ces certain,  which  had  been,  or  might  be,  created  or  reserved ;  and  to 


176  KENT'S  COMMENTARIES,  [VOL.  iv. 

avoid  the  inconvenience  and  absurdity  of  attempting  a  change  in  the 
technical  language  of  the  law,  it  was  further  declared,  that  every  estate  of 
inheritance,  notwithstanding  the  abolition  of  tenure,  should  continue  to  be 
called  a  fee  simple,  or  fee  ;  and  that  every  such  estate,  when  not  defeasible 
or  conditional,  should  be  termed  a  fee  simple  absolute,  or  an  absolute  fee. 

3.  What  is  the  proper  meaning  of  a  "  fee,"  as  now  used  in  this  coun- 
try ? — 4 

An  estate  of  inheritance  in  law,  belonging  to  the  owner,  and  trans- 
missible to  his  heirs.  No  estate  is  deemed  a  fee,  unless  it  may  continue 
forever. 

4.  What  is  an  estate  called,  whose  duration  is  circumscribed  by  one  or 
more  lives  in  being  ? — 4 

A  freehold.  Though  the  limitation  be  to  a  man  and  his  heirs,  during 
the  life  or  widowhood  of  B.,  it  is  not  an  inheritance  or  fee,  because  the 
event  must  necessarily  take  place  within  the  period  of  a  life.  It  is  merely 
a  freehold  with  a  descendible  or  transmissible  quality  ;  and  the  heir  takes 
the  land  as  a  descendible  freehold. 

5.  Which  is  the  most  simple  division  of  estates  as  laid  down  in  the 
books  ? — 4 

That  mentioned  by  Sir  William  Blackstone,  into  inheritances  absolute 
or  fee  simple,  and  inheritances  limited ;  and  these  limited  fees  he  subdi- 
vides into  qualified  and  conditional  fees.  This  was  according  to  Lord 
Coke's  division. 

6.  How  has  Mr.  Preston,  in  his  treatise  on  estate,  divided  fees  ? — 4 

Into  fees  simple,  fees  determinable,  fees  qualified,  fees  conditional, 
and  fees  tail. 

7.  What  is  a  fee  simple  ? — 5 

It  is  a  pure  inheritance,  clear  of  any  qualification  or  condition,  and  it 
gives  a  right  of  succession  to  all  the  heirs  generally,  under  the  restriction 
that  they  must  be  of  the  blood  of  the  first  purchaser,  and  of  the  blood  of 
the  person  last  seized.  It  is  an  estate  of  perpetuity,  and  confers  an  un- 
limited power  of  alienation,  and  no  person  is  capable  of  having  a  greater 
interest  in  land. 

8.  Is,  or  is  not  the  word  heirs  at  common  law,  necessary  to  be  used,  if 
the  estate  is  to  be  created  by  deed  ? — 4 

It  is. 

9.  If  a  man  purchase  lands  to  himself  for  ever,  or  to  him  and  his  as- 
signs for  ever,  what  will  he  take? — 5,  6 

He  takes  but  an  estate  for  life. 


LEG.  LIV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  177 

10.  But  if  the  intent  of  the  parties  was  clearly  expressed  in  the  deed, 
would  not  a  fee  then  pass  ? — 6 

It  would  not,  without  the  word  heirs.  The  rule  was  founded  origi- 
nally on  principles  of  feudal  policy,  which  no  longer  exist,  and  it  has  now 
become  entirely  technical.  A  feudal  grant  was,  stricti  juris,  made  in  con- 
sideration of  the  personal  abilities  of  the  feudatory,  and  his  competency 
to  render  military  service  ;  and  it  was  consequently  confined  to  the  life  of 
the  donee,  unless  there  was  an  express  provision  that  it  should  go  to  his 
heirs. 

1 1 .  Has  not  the  rule  for  a  long  time  been  controlled  by  a  more  liberal 
policy  ? — 6 

It  has,  and  it  is  counteracted  in  practice  by  other  rules  equally  artifi- 
cial in  their  nature,  and  technical  in  their  application. 

12.  Does  it  jpply  to  coveyances  by  fine  ? — 6 

It  does  not,  where  the  fine  is  in  the  nature  of  an  action. 

13.  Does  the  rule  apply  to  a  common  recovery? — 6 
It  does  not. 

14.  Does  it  apply  to  a  release  by  way  of  extinguishment,  as  of  a  com- 
mon of  pasture  ? — 6 

It  does  not ;  nor  to  a  partition  between  joint-tenants,  coparceners, 
and  tenants  in  common  ;  nor  to  releases  of  right  to  land  by  way  of  dis- 
charge or  passing  the  right,  by  one  joint-tenant  or  coparcener  to  another. 

15.  What  does  the  released  take,  in  taking  a  distinct  interest  in  his 
separate  part  of  the  land  ? — 6 

He  takes  the  like  estate  in  quantity,  which  he  had  before  in  common. 

16.  How  do  grants  to  corporations  aggregate  pass  the  fee? — 7 

Grants  to  corporations  pass  the  fee  without  the  words  heirs  or  suc- 
cessors, because  in  judgment  of  law  a  corporation  never  dies,  and  is  im- 
mortal by  means  of  perpetual  succession. 

17.  Will  a  fee  pass  by  will  without  the  word  heirs  ? — 7 

It  will,  if  the  intention  to  pass  a  fee  can  be  clearly  ascertained  from 
the  will,  or  a  fee  be  necessary  to  sustain  the  charge  or  trust  created  by  the 
will.  It  is  likewise  understood,  that  a  court  of  equity  will  supply  the  omis- 
sion of  words  of  inheritance  ;  and  in  contracts  to  convey,  it  will  sustain 
the  right  of  the  party  to  call  for  a  conveyance  in  fee,  when  it  appears  to 
have  been  the  intention  of  the  contract  to  convey  a  fee. 
23 


178  KENT'S  COMMENTARIES,  [VOL.  i\% 

1 8.  But  has  not  the  statute  law  of  some  of  the  states  abolished  the  in- 
flexible rule  of  the  common  law? — 7 

It  has. 

19.  What  is  a  qualified,  base,  or  determinable  fee  ? — 9 

It  is  an  interest  which  may  continue  for  ever,  but  the  estate  is  liable  to 
be  determined  by  some  act  or  event,  circumscribing  its  continuance  or  ex- 
tent. Though  the  object  on  which" it  rests  for  perpetuity  may  be  perishable 
or  transitory,  yet  such  estates  are  deemed  fees,  because,  it  is  said,  they  have 
a  possibility  of  enduring  for  ever.  A  limitation  to  a  man  and  his  heirs,  so 
long  as  A.  shall  have  heirs  of  his  body  ;  or  to  a  man  and  his  heirs,  tenants 
of  the  manor  of  Dale  ;  or  till  the  marriage  of  B. ;  or  so  long  as  St.  Paul's 
church  shall  stand,  or  a  tree  shall  stand,  are  a  few  of  the  many  instances 
given  in  the  books,  in  which  the  estate  will  descend  to  the  heirs,  but  con- 
tinue  no  longer  than  the  period  mentioned  in  the  respective  limitations  or 
when  the  qualification  annexed  to  it  is  at  an  end. 

20.  What  if  the  event  marked  out  as  the  boundary  to  the  time  of  the 
continuance  of  the  estate,  becomes  impossible  ? — 9 

The  estate  then  ceases  to  be  determinable,  and  changes  into  a  simple 
and  absolute  fee  ;  but  until  that  time,  the  estate  is  in  the  grantee,  subject 
only  to  a  possibility  of  reverter  in  the  grantor. 

21.  What  renders  the  estate  a  fee,  and  not  merely  a  freehold?— 9 

The  uncertainty  of  the  event,  and  the  possibility  that  the  fee  may  last 
for  ever 

22.  What  are  determinable  fees,  and  how  long  do  they  continue  descend- 
ible inheritances  ? — 9 

All  fees  liable  to  be  defeated  by  an  executory  devise,  are  determina- 
ble fees,  and  they  continue  descendible  inheritances  until  they  are  dischar- 
ged from  the  determinable  quality  annexed  to  them,  either  by  the  happen- 
ing of  the  event,  or  by  a  release. 

23.  What  are  these  qualified  and  determinable  fees  termed?  — 9 

They  are  likewise  termed  base  fees,  because  their  duration  depends 
upon  the  occurrence  of  collateral  circumstances,  which  qualify  and  debase 
the  purity  of  the  title. 

24.  May  a  tenant  in  tail,  by  a  bargain  and -sale,  lease  and  release,  or 
covenant  to  stand  seized,  create  a  base  fee,  which  will  not  determine  until 
the  issue  in  tail  enters  ? — 9 

Yes,  he  may. 

25.  If  the  owner  of  a  determinable  fee  conveys  in  fee,  what  follows 
the  transfer,  and  on  what  is  this  founded?  — 10 


LBC.  LIV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  179 

The  determinable  quality  of  the  estate  follows  the  transfer  ;  and  this 
is  founded  upon  the  sound  maxim  of  the  common  law,  that  nemo  potestplus 
juris  in  alium  trans  fere  quam  ipse  habet. 

26.  What  rights  and  privileges  over  the  estate  has  the  proprietor  of  a 
qualified  fee  T  — 10 

The  same  as  if  he  were  a  tenant  in  fee  simple. 

27.  What  is  a  conditional  fee  ?  — 10 

It  is  one  which  restrains  the  fee  to  some  particular  heirs  exclusive  of 
others,  as  to  the  heirs  of  a  man's  body,  or  to  the  heirs  male  of  his  body. 

28.  How  was  this  fee  construed  at  common  law  ? — 10 

It  was  construed  to  be  a  fee  simple,  on  condition  that  the  grantee  had 
the  heirs  prescribed. 

29.  What  if  the  grantee  died  without  issue  ? — 10 
Then  the  lands  reverted  to  the  grantor. 

30.  What  if  he  had  the  specified  issue  ? — 1 1 

The  condition  was  supposed  to  be  performed,  and  the  estate  became 
absolute,  so  far  as  to  enable  the  grantee  to  alien  the  land,  and  bar  not  only 
his  own  issue,  but  the  possibility  of  a  reverter. 

31.  Could  the  tenant  of  the  fee  simple  conditional  by  feoffment  have 
bound  the  issue  of  his  body  before  issue  had  ?  — 11 

He  could. 

32.  After  issue  born,  could  the  tenant  bar  the  donor  and  his  heirs  of  their 
possibility  of  a  reversion  ? — 1 1 

Yes,  but  the  course  of  descent  was  not  altered  thereby. 

33.  How  was  it  before  the  statute  de  donis? — 11 

Before  the  enactment  of  the  statute  so  called,  a  fee  on  condition  that 
the  donee  had  issue  of  his  body,  was,  in  fact  a  fee  tail  and  the  limitation 
was  not  effaced  by  the  birth  of  issue. 

34.  What  effect  had  the  statute  de  donis,  on  the  birth  of  issue,  and  how 
was  it  considered  by  the  courts  of  justice  1 — 12 

It  took  away  the  power  of  alienation  on  the  birth  of  issue,  and  the 
courts  of  justice  considered  that  the  estate  was  divided  into  a  particular 
estate  in  the  donee,  and  a  reversion  in  the  donor. 

35.  When  the  donee  had  a  fee  simple  before,  what  had  he  by  the  sta- 
tute 1 — 12 

An  estate  tail. 


180  KENT'S  COMMENTARIES,  [VOL.  iv. 

36.  Under  this  division  of  the  estate,  could  or  would  not  the  donee  bar 
or  charge  his  issue  ? — 12 

He  could  not. 

37.  Were  estates  tail  liable  to  forfeiture,  for  treason  or  felony  ? — 13 

No.  Nor  were  they  chargeable  with  the  debts  of  the  ancestor,  nor 
bound  by  alienation. 

38.  To  whom  were  they  beneficial,  and  to  whom  injurious  ?  — 13 

They  were  very  conducive  to  the  security  and  power  of  the  great 
landed  proprietors  and  their  families,  but  very  injurious  to  the  industry  and 
commerce  of  the  nation. 

39.  When  was  relief  first  obtained  against  this  great  national  griev- 
ance ? — 13 

It  was  not  until  Taltarum's  case,  12  Edw.  IV.  that  relief  was  obtained, 
and  it  was  given  by  a  bold  and  unexampled  stretch  of  thepower  of  judi- 
cial legislation. 

40.  What  then,  did  the  judges  resolve  upon? — 13 

Upon  consultation,  they  resolved,  that  an  estate  tail  might  be  cut  off 
and  barred,  by  a  common  recovery,  and  that  by  reason  of  the  intended 
recompense,  the  common  recovery  was  not  within  the  restraint  of  the 
statute  de  donis. 

41.  Were  these  recoveries  afterwards  taken  notice  of?— 13 

They  were,  and  indirectly  sanctioned,  by  several  acts  of  Parliament, 
and  have,  ever  since  their  application  to  estates  tail,  been  held  as  one  of 
the  lawful  and  established  assurances  of  the  realm. 

42.  How  are  they  now  considered  ?  — 13 

They  are  now  considered  merely  in  the  light  of  a  conveyance  on  re- 
cord, invented  to  give  a  tenant  in  tail,  an  absolute  power  to  dispose  of  his 
estate,  as  if  he  were  a  tenant  in  fee  simple  ;  and  estates  tail  in  England, 
for  a  long  time  past,  have  been  reduced  to  almost  the  same  state,  even 
before  issue  born,  as  conditional  fees  were  at  common  law,  after  the  con- 
dition was  performed  by  the  birth  of  issue. 

43.  What  does  a  common  recovery  remove  ?  — 13 

It  removes  all  limitations  upon  an  estate  tail,  and  an  absolute,  unfet- 
tered, pure  fee-simple,  passes  as  the  legal  effect  and  operation  of  a  com- 
mon recovery. 


LEC.  LIV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  181 

44.  Is  it,  or  is  it  not,  the  only  mode  of  conveyance  in  England,  by 
which  a  tenant  in  tail,  can  effectually  dock  the  entail  ? — 14 

It  is. 

45.  If  he  conveys  by  deed,  what  only  does  he  convey  ?— 14 

A  base  or  avoidable  fee,  and  he  will  not  exclude  his  heirs  per  formam 
doni. 

46.  What  only  does  he  bar  even  by  fine  ?— 14 
His  issue  only,  and  not  subsequent  remainders. 

47.  What  alone  is  it,  that  passes  an  absolute  title  ?  — 14 
The  common  recovery.        ' 

48.  Did  not  estates  tail  subsist  in  full  force  before  our  revolution  ?  — 14 
They  did. 

49.  Has  not  the  doctrine  of  estates  tail,  and  the  complex  and  multifa- 
rious learning  connected  with  it,  become  quite  obsolete  in  most  parts  of 
the  United  States  ? — 14 

Yes  it  has, — in  Virginia,  estates  tail  were  abolished  as  early  as 
1776  ;  in  New  Jersey,  in  the  years  1784  and  1786  ;  and  in  New  York, 
as  early  as  1782,  and  all  estates  tail  were  turned  into  estates  in  fee -simple 
absolute.  So,  in  North  Carolina,  Kentucky,  Tennessee,  Georgia,  and 
Missouri,  estates  tail  have  been  abolished,  by  being  converted  by  statute 
into  estates  in  fee  simple.  In  the  states  of  Vermont,  Indiana,  Illinois, 
South  Carolina,  and  Louisiana,  they  do  not  appear  to  be  known  to  their 
laws,  or  even  to  have  existed  ;  but  in  several  of  the  other  states,  they  are 
partially  tolerated,  and  exist  in  a  qualified  degree. 

50.  What  has  been  the  fate  of  conditional  fees  at  common  law  ? — 16 

They  have  generally  partaken  of  the  fate  of  estates  in  fee  tail,  and 
have  not  been  revived  in  this  country. 

51.  Does,  or  does  not  the  general  policy  of  this  country,  encourage  re- 
straints upon  the  power  of  alienation  of  land? — 17 

No.     It  does  not. 

52.  Have  the  New  York  revised  statutes  enlarged  or  abridged  the  pre- 
valing  extent  of  executory  limitations  ?— '17 

They  have  considerably  abridged  them. 

53.  Have  not  entails,  under  certain  modifications,  been  retained  in  va- 
rious parts  of  the  United  States?  — 19 

They  have,  with  increased  power  over  the  property,  and  greater  fa- 


182  KENT'S  COMMENTARIES,  [VOL.  iv. 

cility  of  alienation.  The  desire  to  preserve  and  perpetuate  family  influ- 
ence, and  property,  is  very  prevalent  with  mankind,  and  is  deeply  seated 
in  the  affections. 

This  propensity  is  attended  with  many  beneficial  effects.  But  if  the 
doctrine  of  entails  be  calculated  to  stimulat  eexertion  and  economy,  by  the 
hope  of  placing  the  fruits  of  talent  and  industry  in  the  possession  of  a 
long  line  of  lineal  descendants,  undisturbed  by  their  folly  or  extravagance, 
it  has  a  tendency  on  the  other  hand,  to  destroy  the  excitement  to  action  in 
the  issue  in  tail,  and  to  leave  an  accumulated  mass  of  property  in  the 
hands  of  the  idle  and  vicious. 

Dr.  Smith  insisted,  from  actual  observation,  that  entailments  were  un- 
favorable to  agricultural  improvement.  The  practice  of  perpetual  entails 
is  carried  to  a  great  extent  in  Scotland,  and  that  eminent  philosopher  ob- 
served, half  a  century  ago,  that  one-third  of  the  whole  land  of  the  country 
was  loaded  with  the  fetters  of  a  strict  entail ;  and  it  is  understood  that 
additions  are  every  day  making  to  the  quantity  of  land  in  tail,  and  that  they 
now  extend  over  half  the  country.  Some  of  the  most  distinguished  of 
the  Scotch  statesmen  and  lawyers  have  united  in  condemning  the  policy 
of  perpetual  entails,  as  removing  a  very  powerful  incentive  to  preserving 
industry  and  honest  ambr.ion. 

54.  What  says  Mr.  Gibbon  on  the  simplicity  of  the  civil  law  ?  — 19 

It  is  said  by  him,  to  have  been  a  stranger  to  the  long  and  intricate 
system  of  entails  ;  and  yei  the  Roman  trust  settlements,  or  fidei  commissa, 
were  analogous  to  estates  tail.  When  an  estate  was  left  to  an  heir  in 
trust,  to  leave  it  at  his  death  to  his  eldest  son,  and  so  on  by  way  of  sub- 
stitution, the  person  substituted  corresponded  in  a  degree  to  the  English 
issue  in  tail. 

55.  What  is  it  also  termed  by  Mr.  Gibbon  ? — 20 

A  partial,  perplexed,  declamatory  law,  which,  by  an  abuse  of  the 
novel,  (159.  c.  2.  Justinian,)  stretched  the  fidei  commissa  to  the  fourth  de- 
gree. 

56.  How  far  were  entails  formerly  permitted  to  extend  in  France  1— 20 

To  the  period  of  three  lives  only  ;  but  in  process  of  time,  they  gained 
ground,  and  trust  settlements,  says  the  ordinance  of  1747,  were  extended 
not  only  to  many  persons  successively,  but  to  a  long  series  of  generations. 
That  new  kind  of  succession  or  entailment  was  founded  on  private  will, 
which  had  usurped  the  place  of  law,  and  established  a  new  land  of  juris- 
prudence. It  led  to  numerous  and  subtle  questions,  which  perplexed  the 
tribunals,  and  the  circulation  of  property  was  embarassed.  Chancellor 
D'Aguesseau  prepared  the  ordinance  of  1747,  which  was  drawn  with 
great  wisdom,  after  consultation  with  the  principal  magistrates  %f  the 
provincial  parliaments,  and  the  superior  counsels  of  the  realm,  and  re- 
ceiving the  exact  reports  of  the  state  of  the  local  jurisprudence  on  the 
subject.  It  limited  the  entail  to  two  degrees,  counted  per  capita,  between 


LEC.  LV.]  REDUCED  TO  QUESTION'S  AND  ANSWERS.  183 

the  maker  of  the  entail  and  the  heir ;  and,  therefore,  if  the  testator  made 
A.  his  devisee  for  life,  and  after  the  death  of  A.  to  B.,  and  after  his  death 
to  C.,  and  after  his  death  to  D.,  &c.,  and  the  estate  should  descend  from 
A.  to  B.,  and  from  B.  to  C.,  he  would  hold  it  absolutely,  and  the  remain- 
der over  to  D.  would  be  void.  But  the  code  Napoleon  annihilated  the  miti- 
gated entailments  allowed  by  the  ordinance  of  1747,  and  declared  all  sub- 
stitutions or  entails  to  be  null  and  void,  even  in  respect  to  the  first  donee. 


LECTURE     LV. 
OF  ESTATES  FOR  LIFE. 

1.  Does  an  estate  of  freehold  apply  equally  to  an  estate  of  inheritance  ; 
and  to  what  does  Sir  William  Blackstone  confine  freehold  estate  ? — 23 

It  does  apply  in  both  cases,  and  Sir  William  Blackstone  confines  the 
description  of  a  freehold  estate  simply  to  the  incident  of  livery  of  seisin, 
which  applies  to  estates  of  inheritance  and  estates  for  life  ;  and  as  those 
estates  were  the  only  ones  which  could  not  be  conveyed  at  common  law 
without  the  solemnity  of  livery  of  seisin,  no  other  estates  were  properly 
freehold  estates. 

2.  What  may  justly  be  denominated  a  freehold  ?— 24 

Any  estate  of  inheritance,  or  for  life,  in  real  property,  whether  it  be 
a  corporeal  or  incorporeal  herediament,  is  justly  entitled  to  that  appellation. 

3.  What,  by  the  ancient  law,  did  a  freehold  interest  confer  upon  the 
owner? — 24 

A  variety  of  valuable  rights  and  privileges.  He  became  a  suitor  of 
the  courts,  and  a  judge  in  the  capacity  of  a  juror  ;  he  was  entitled  to  vote 
for  members  of  parliament,  and  to  defend  his  title  to  the  land  ;  as  owner 
of  the  immediate  freehold,  he  was  a  necessary  tenant  to  the  preecipe  in 
a  real  action,  and  he  had  a  right  to  call  in  the  aid  of  the  reversioner  or 
remainder-man,  when  the  inheritance  was  demanded.  These  rights  give 
him  importance  and  dignity  as  a  freeholder  and  freeman. 

4.  How  were  estates  for  life  divided  ? — 24 

Into  conventional  and  legal  estates.  The  first  are  created  by  the 
act  of  parties,  and  the  second  by  the  operation  of  law. 

5.  What  were  estates  for  life,  at  common  law  ? — 24 


184  KENT'S  COMMENTARIES,  [VOL.  iv. 

Freehold  estates  of  a  feudal  nature,  inasmuch  as  they  were  conferred 
by  the  same  forms  and  solemnity  as  estates  in  fee,  and  were  held  by  fealty, 
services  agreed  on  between  the  lord  and  tenant. 

6.  In  what  two  ways  may  life  estates  be  created? — 25 

1.  By  express  words,  as  if  A.  conveys  land  to  B.  for  the  term  of  his 
natural  life.  2.  They  may  arise  by  construction  of  law,  as  if  A.  conveys 
land  to  B.  without  specifying  the  time  of  duration,  and  without  words  of 
limitation.  In  this  last  case,  B.  cannot  have  an  estate  in  fee,  according  to 
the  English  law,  and  according  to  the  law  of  those  parts  of  the  United 
States  which  have  not  altered  the  common  law  in  this  particular,  but  he 
will  take  the  largest  estate  which  can  possibly  arise  from  the  grant,  and 
that  is  an  estate  for  life. 

7.  Of  what  two  kinds  are  life  estates  ? — 25 

Either  for  a  man's  own  life,  or  for  the  life  of  another  person,  and  in  this 
last  case,  it  is  termed  an  estate  per  autre  vie,  which  is  the  lowest  species 
of  freehold,  and  esteemed  of  less  value  than  an  estate  for  one's  own  life. 

8.  How  has  the  law  in  this  respect  proceeded  ?— 25 

It  has  proceeded  upon  the  known  principles  of  human  nature,  for,  in 
the  ordinary  opinion  of  mankind,  as  well  as  in  the  language  of  Lord  Coke, 
"  an  estate  for  a  man's  own  life  is  higher  than  for  another  man's  life." 

9.  What  third  branch  of  life  estate  may  also  be  added  ? — 25 

An  estate  for  the  term  of  the  tenant's  own  life,  and  the  life  of  one  or 
more  third  persons.  In  this  case,  the  tenant  for  life  has  but  one  freehold 
limited  to  his  own  life,  and  the  life  of  the  other  party  or  parties. 

10.  May  not  these  estates  be  made  to  depend  upon  a  contingency, 
which  can  happen  and  determine  the  estate  before  the  death  of  the  gran- 
tee ? — 25 

Yes.  Thus  if  an  estate  be  given  to  a  woman  dum  sola,  or  durante 
viduitate,  or  to  a  person  so  long  as  he  shall  dwell  in  a  particular  place,  or 
for  any  other  indeterminate  period,  as  a  grant  of  an  estate  to  a  man  until 
he  shall  have  received  a  given  sum  out  of  the  rents  and  profits  ;  in  all 
these  cases,  the  grantee  takes  an  estate  for  life,  but  one  that  is  determina- 
ble  upon  the  happening  of  the  event  on  which  the  contingency  depended. 
If  the  tenant  for  the  life  of  B.  died  in  the  lifetime  of  B.,  the  estate  was 
open  to  any  general  occupant  during  the  life  of  B. ;  but  if  the  grant  was 
to  A.  and  his  heirs  during  the  life  of  B.,  the  heir  took  it  as  a  special  oc- 
cupant. 

11.  How  in  New  York  is  an  estate  per  outer  vie  deemed,  whether 
limited  to  heirs  or  otherwise  ? — 26 

It  is  deemed  a  freehold  only  during  the  life  of  the  grantee  or  devisee, 
and  after  his  death  it  is  deemed  a  chattel  real. 


LEC.  LV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  185 

12.  What  is  tenancy  by  the  curtesy  ? — 26 

It  is  an  estate  for  life,  created  by  the  act  of  the  law.  When  a  man 
marries  a  woman,  seised,  at  any  time  during  the  coverture,  of  an  estate 
of  inheritance,  in  severally,  in  coparcenary,  or  in  common,  and  hath  issue 
born  alive,  and  which  might  by  possibility  inherit  the  same  estate  as  heir 
to  the  wife,  and  the  wife  dies  in  the  lifetime  of  the  husband,  he  holds  the 
land  during  his  life,  by  the  curtesy  of  England ;  and  it  is  immaterial 
whether  the  issue  be  living  at  the  time  of  the  seisin,  or  at  the  death  of 
the  wife,  or  whether  it  was  born  before  or  after  the  seisin. 

13.  How  in  South  Carolina  is  tenancy  by  curtesy,  eo  nomine?— 28 

It  has  ceased  by  the  provision  of  an  act  in  1794,  relative  to  the  distri- 
bution of  intestates'  estates,  which  gives  to  the  husband  surviving  his  wife 
the  same  share  of  her  real  estate  as  she  would  have  taken  out  of  his,  if 
left  a  widow,  and  that  is  either  one  inoiety  or  one-third  of  it,  in  fee,  ac- 
cording to  circumstances. 

14.  How  in  Georgia  ? — 29 

In  Georgia  it  does  not  exist;  because  all  marriages  since  1785,  vest 
the  real  equally  with  the  personal  estate  in  the  husband. 

15.  What  four  things  are  requisite  to  an  estate  by  the  curtesy  ? — 29 

1.  Marriage. 

2.  Actual  seisin  of  the  wife. 

3.  Issue. 

4.  Death  of  the  wife. 

16.  Does  the  law  vest  the  estate  in  the  husband  on  the  death  of  the 
wife,  without  entry  ? — 29 

It  does. 

17.  When  is  his  estate  initiate  and  when  consummate  ? — 29 

His  estate  is  initiate  on  issue  had,  and  consummate  on  the  death  of 
the  wife. 

18.  How  must  the  wife,  according  to  the  English  law,  have  been  seised 
to  entitle  the  husband  to  his  curtesy  1 — 29 

In  fact  and  in  deed,  and  not  merely  of  a  seisin  in  law  of  an  estate  of 
inheritance. 

19.  What  is  the  law  of  curtesy  in  Connecticut?— 30 

The  law  of  curtesy  in  that  state,  is  made  to  symmetrize  with  other  parts 
of  their  system,  and  ownership  without  seisin,   is  sufficient  to  govern  the 
descent  or  devise  of  real  estate. 
24 


186  KENT'S  COMMENTARIES,  [VOL.  iv' 

20.  Could  the  husband  at  common  law  be  tenant  by  the  curtsey  of  a 
use,  and  how  is  that  point  now  settled  in  equity  ? — 30 

He  could  not,  but  it  is  now  settled  in  equity,  that  he  may  be  tenant  by 
the  curtesy  of  an  equity  of  redemption,  and  of  lands  of  which  the  wife  had 
only  a  seisin  in  equity  as  a  cestui  que  trust. 

21.  Is  the  receipt  of  the  rents  and  profits  a  sufficient  seisin  in  the 
wife?— 31 

It  is. 

22.  What  if  lands  be  devised  to  the  wife  for  her  separate  and  exclusive 
use,  and  with  a  clear  and  distinct  expression  that  the  husband  was  not  to 
have  any  life  estate  or  other  interest,  but  the  same  was  to  be  for  the  wife 
and  her  heirs  ? — 31 

In  that  case,  the  court  of  chancery  will  consider  the  husband  a  trustee 
for  the  wife  and  her  heirs,  and  bar  him  of  his  curtesy. 

23.  Is  the  husband  of  a  mortgagee  in  fee  entitled  to  his  curtesy  ?— 31 
No. 

24.  What  has  this  rule  now  become  ?— 32 

It  has  now  become  common  learning,  and  irts  well  understood  that  the 
rights  existing  in,  or  flowing  from  the  mortgagee,  are  subject  to  the  claims 
of  the  equity  of  redemption,  so  long  as  the  same  remains  in  force. 

25.  To  what  estates  does  curtesy  apply  ?— 31 

To  qualified  as  well  as  to  absolute  estates  in  fee. 

26.  What  is  dower,  and  when  or  where  does  it  exist  ?— 34 

It  is  a  species  of  life  estate  created  by  the  act  of  the  law,  and  it  ex- 
ists where  a  man  is  siesed  of  an  estate  of  inheritance,  and  dies  in  the 
lifetime  of  his  wife. 

27.  Of  what,  in  such  a  case,  is  she  at  common  law,  entitled  to  be  en- 
dowed?—34 

Of  the  third  part  of  all  the  lands  whereof  her  husband  was  seised, 
either  in  deed  or  in  law,  at  any  time  during  the  coverture,  and  of  which 
any  issue  which  she  might  have  had  might  by  possibility  have  been  heir, 
and  these  she  held  for  the  term  of  her  natural  life. 

28.  For  what  was  this  humane  provision  of  the  common  law  intended  ? 
—35 

For  the  sure  and  competent  sustenance  of  the  widow,  and  the  better 
nurture  and  education  of  her  children. 


LEC.  LV.]  REDUCED  TO  QUESTION'S  AND  ANSWERS.  187 

29.  What  three  things  are  requisite  to  the  consummation  of  the  title  to 
dower?— 35 

1.  Marriage.     2.  Seisin  of  the  husband.     3.  His  death. 

30.  Upon  what  marriage  does  dower  attach  ?— 36 

It  attaches  upon  all  marriages  not  absolutely  void,  and  existing  at  the 
death  of  the  husband;  it  belongs  to  a  wife  de "facto,  whose  marriage  is 
voidable  by  decree,  as  well  as  to  a  wife  de  jure. 

31.  What  must  the  husband  have  had,  and  at  what  time,  to  entitle 
the  wife  to  dower  ?  — 37 

The  husband  must  have  had  seisin  of  the  land  in  severally,  and  at 
some  time  during  the  marriage. 

32.  Does  a  title  to  dower  attach  on  a  joint  seisin?— 37 

No. 

33.  Will  a  mere  possibility  of  the  estate  being  defeated  by  survivorship 
prevent  dower  ? — 37 

It  will. 

34.  How  far  did  the  old  rule  go  on  this  subject  ? — 37 

It  went  so  far  as  to  declare,  that  if  one  joint-tenant  aliens  his  share, 
his  wife  shall  not  be  endowed,  notwithstanding  the  possibility  of  the  other 
joint-tenant  taking  by  survivorship  is  destroyed  by  the  severance  ;  for  the 
husband  was  never  sole  seised. 

35.  Is  it  sufficient  to  give  a  title  to  dower,  that  the  husband  had  a  seisin 
in  law,  without  being  actually  seised  ? — 37 

It  is. 

36.  What  reason  is   given  for  the  distinction  on  this  point  between 
dower  and  curtesy? — 37 

The  reason  is,  that  it  is  not  in  the  wife's  power  to  procure  an  actual 
seisin  by  the  husband's  entry,  whereas  the  husband  has  always  the  power 
of  procuring  seisin  of  the  wife's  land. 

37.  If  land  descends  to  the  husband  as  heir,  and  he  dies  before  entry, 
will  his  wife  be  entitled  to  her  dower  ? — 37 

She  will,  and  this  would  be  the  case,  even  if  a  stranger  should,  in  the 
intermediate  time,  by  way  of  abatement,  enter  upon  the  land ;  for  the  law 
contemplates  a  space  of  time  between  the  death  of  the  ancestor,  and  the 
entry  of  the  abater,  during  which  time  the  husband  had  a  seisin  in  law  as 
heir. 


188  KENT'S  COMMENTARIES,  [VOL.  iv. 

38.  But  is  it  not  necessary  that  the  husband  should  have  been  seised 
either  in  fact  or  in  law,  to  entitle  to  dower  ?  —  37 

It  is — and  where  the  husband  had  been  in  possession  for  years,  using 
the  land  as  his  own,  and  conveying  it  in  fee,  the  tenant  deriving  title  un- 
der him  is  concluded  from  controverting  the  seisin  of  the  husband,  in  the 
action  of  dower.  If,  however,  upon  the  determination  of  a  particular  free- 
hold estate,  the  tenant  holds  over  and  continues  his  seisin,  and  the  husband 
dies  before  entry,  or  if  he  dies  before  entry  in  a  case  of  forfeiture  for  a 
condition  broken,  his  wife  is  not  dowable,  because  he  had  no  seisin  either 
in  fact  or  in  law. 

39.  Will  the  laches  of  the  husband  prejudice  the  claim  of  dower,  when 
he  has  no  seisin  in  law  ?— 38 

When  he  has  no  seisin  in  law  it  will,  but  not  otherwise  ;  and  Per- 
kins states  general  cases  in  illustration  of  the  rule.  So,  if  a  lease  for  life 
be  made  before  marriage,  by  a  person  seised  in  fee,  the  wife  of  the  lessor 
will  be  excluded  from  her  dower,  unless  the  life  estate  terminates  during 
coverture,  because  the  husband,  though  entitled  to  the  reversion  in  fee, 
was  not  seised  of  the  immediate  freehold.  If  the  lease  was  made  subse- 
quent to  the  time  that  the  title  to  dower  attached,  the  wife  is  dowable  of 
the  land,  and  defeats  the  lease  by  title  paramount. 

40.  Will  a  transitory  seisin  for  an  instant,  when  the  same  act  that  gives 
the  estate  to  the  husband  conveys  it  out  of  him,  as  in  the  case  of  a  conusee 
of  a  fine,  be  sufficient  to  give  the  wife  dower  ?  — 38 

It  will  not. — The  same  doctrine  applies  when  the  husband  takes  a 
conveyance  in  fee,  and  at  the  same  time  mortgages  the  land  back  to  the 
grantor,  or  to  a  third  person,  to  secure  the  purchase  money  in  whole  or  in 
part.  Dower  cannot  be  claimed  as  against  rights  under  that  mortgage. 
The  husband  is  not  deemed  sufficiently  or  beneficially  seised  by  such  an 
instantaneous  passage  of  the  fee  in  and  out  of  him,  to  entitle  his  wife  to 
dower  as  against  the  mortgagee,  and  this  conclusion  is  agreeable  to  the 
manifest  justice  of  the  case.  The  widow,  in  this  case,  on  foreclosure  of 
the  mortgage  and  sale  of  the  mortgaged  premises,  will  be  entitled  to  her 
claim  to  the  extent  of  her  dower  in  the  surplus  proceeds,  after  satisfying 
the  mortgage  ;  and  if  the  heir  redeems,  or  she  brings  her  writ  of  dower, 
she  is  let  in  for  her  dower,  on  contributing  her  proportion  of  the  mortgage 
debt. 

42.  How  must  the  husband- be  seised,  to  create  a  title  to  dower?  —  39 

He  must  be  seised  of  a  freehold  in  possession,  and  of  an  estate  of  im- 
mediate inheritance  in  remainder  or  reversion. 

43.  Does  dower  attach  to  all  real  hereditaments  ?— 40 
It  does. 

44.  What  is  the  reason  of  the  American  rule,  giving  dower  in  equities 
of  redemption  ? — 45 


LKC.  LV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  189 

The  reason  is,  that  the  mortgagor,  so  long  as  the  mortgagee  does  not 
exert  his  right  of  entry  or  foreclosure,  is  regarded  as  being  legally  as  well 
as  equitably  seised  in  respect  to  all  the  world,  but  the  mortgagee  and  his 
assigns. 

45.  Will  dower  be  defeated  upon  the  restoration  of  the  seisin  under  the 
prior  title  in  the  case  of  defeasible  estates,  as  in  the  case  of  re-entry  fora 
condition  broken,  which  abolishes  the  intermediate  seisin  ? — 47 

It  will. 

46.  Will  a  recovery  by  actual  title  against  the  husband,  also  defeat  the 
wife's  dower?— 47 

Yes. 

47.  But  what  if  he  give  up  the  land  by  default  and  collusively  ?—  47 

The  statute  of  Westminster  2,  c.  4.  preserved  the  wife's  dower,  un- 
less the  tenant  could  show  affirmatively  a  good  seisin  out  of  the  husband 
and  in  himself. 

48.  By  what  is  the  wife's  dower  liable  to  be  defeated,  on  a  general 
principle  ? —  49 

By  every  subsisting  claim  or  encumbrance,  in  law  or  equity,  existing 
before  the  inception  of  the  title,  and  which  would  have  defeated  the  hus- 
band's seisin. 

49.  If  the  husband  and  wife  levy  a  fine,  or  suffer  a  common  recovery, 
is  the  wife  barred  of  her  dower?— 50 

She  is. 

50.  Does  a  divorce,  a  vinculo  matrimonii,ba.r  the  claim  of  dower  ? — 53 
It  does. 

51.  May  the  wife  be  barred  of  her  dower,  by  having  a  joint  estate, 
usually  denominated  a  jointure,  settled  upon  her  and  her  husband,  and  in 
case  of  his  death  to  be  extended  to  the  use  of  the  wife  during  her  life  ? — 54 

She  may. 

52.  What  four  provisions  must  be  complied  with,  in  a  jointure  to  bar  a 
dower?— 54 

1.  It  must  take  effect  immediately  on  the  death  of  the  husband.  2. 
It  must  be  for  the  wife's  life.  3.  It  must  be  made  and  declared  to  be  in 
satisfaction  of  her  whole  dower.  4.  It  must  be  to  the  wife  herself,  and 
not  to  any  other  person  in  trust  for  her. 

53.  Is  a  conveyance  to  trustees,  for  the  use  of  the  wife  after  the  hus- 
band's death,  in  point  of  law  a  jointure  ?— 54,  55 


190  KENT'S  COMMENTARIES,  [VOL.  iv. 

No ;  but  such  a  settlement,  if  in  other  respects  good,  will  be  enforced 
in  chancery  as  an  equitable  bar  of  dower ;  and  courts  of  equity  have 
greatly  relieved  the  parties  from  the  strict  legal  construction  given  to  the 
statute.  It  has  also  been  settled,  after  great  discussion  in  the  English 
House  of  Lords,  in  the  case  of  Drury  v.  Drury,  and  in  New  York,  in 
M'Cartee  v.  Teller,  that  a  jointure  on  an  infant  before  coverture,  bars  her 
dower,  notwithstanding  her  infancy,  on  the  ground  of  its  being  a  provision 
by  the  husband  for  the  wife's  support.  It  was  considered  to  be  a  bar,  a 
provisione  viri  and  not  ex  contractu  ;  and  the  assent  of  the  wife  was  held 
not  to  be  an  operative  circumstance,  though  the  ante-nuptial  contract  was, 
in  that  case,  executed  by  the  infant  in  the  presence  of  her  guardian.  An 
equitable  jointure,  or  a  competent  and  certain  provision  for  the  wife,  in 
lieu  of  dower  if  assented  to  by  the  father  or  the  guardian  of  the  infant 
before  marriage,  will  also,  in  analogy  to  the  statute,  constitute  an  equitable 
bar.  But  the  conveyance  before  marriage  of  an  estate  to  the  wife,  to 
continue  during  widowhood,  by  way  of  jointure,  or  if  made  to  depend 
on  any  other  condition,  will  not  bar  her  dower,  even  if  she  be  an  adult, 
unless,  when  a  widow,  she  enters  and  accepts  the  qualified  freehold. 
The  legal  or  equitable  provision  must  be  a  fair  equivalent  to  the  dower 
estate,  to  make  it  absolutely  binding  in  the  first  instance.  In  New  York, 
the  statute  of  27  Hen.  VIII.  concerning  jointures,  was,  in  1787,  adopted 
verbatim ;  but  it  has  been  altered  and  improved  by  the  new  revised  stat- 
utes ;  and  the  principle  in  equity,  allowing  jointures  to  exist  also  by  con- 
veyance of  lands  to  a  trustee,  in  trust  for  the  wife,  has  been  introduced 
into  the  statute  law,  which  provides,  that  if  "  an  estate  in  lands  be  conveyed 
to  a  person  and  his  intended  wife,  or  to  such  intended  wife  alone,  or  to 
any  other  person  in  trust  for  such  person  and  his  intended  wife,  or  in  trust 
for  such  wife  alone,  for  the  purpose  of  creating  a  jointure  for  such  in- 
tended wife,  and  with  her  assent,  such  jointure  shall  be  a  bar  to  any  right 
or  claim  of  dower,  &c.  ;  and  the  evidence  of  the  assent  of  the  wife  shall 
be,  by  her  becoming  a  party  to  the  conveyance,  if  of  age,  and,  if  an  infant, 
by  her  joining  with  her  father  or  guardian  therein." 

The  statute  of  27  Hen.  VIII.  further  provided,  that  if  the  settlement 
in  jointure  was  made  after  marriage,  the  wife  should  have  her  election,  if 
she  survived  her  husband,  to  take  it  in  lieu  of  dower,  or  to  reject  it,  and 
betake  herself  to  her  dower  at  common  law.  So,  if  she  was  fairly  evicted 
by  law  from  her  jointure,  or  any  part  of  it,  the  deficiency  was  to  be  sup- 
plied from  other  lands,  whereof  she  would  have  been  otherwise  dowable. 
Both  these  provisions  formed  a  part  of  the  statute  of  New  York,  in  1787, 
and  they  have  probably  been  adopted  in  all  the  states  where  the  law  of 
jointure  in  bar  of  dower  has  been  introduced. 

54.  Is  it  not  settled  that  a  collateral  satisfaction,  consisting  of  money 
or  other  chattel  interests,  given  by  will,  and  accepted  by  the  wife  after  her 
husband's  death,  will  constitute  an  equitable  bar  of  dower  ? — 57 

It  is. 

55.  Have  not  the  New  York  revised  statutes,  embodied  most  of  these 
principles  of  law  and  equity,  with  some  variations  and  amendments  ? — 58 

They  have. 


LEC.    LV.]  REDUCED    TO    QUESTIONS    AND    ANSWERS.  191 

56.  What  do  the  New  York  revised  statutes,  together  with  the  laws  of 
Massachusetts  and  Connecticut,  declare  respecting  dower  ? — 58 

They  declare,  that  any  pecuniary  provision  made  before  marriage  in 
lieu  of  dower,  if  duly  assented  to  by  the  wife,  shall  bar  her  dower. 

57.  What  was  a  principle  of  the  common  law,  that  if  the  husband  sei- 
sed of  an  estate  of  inheritance,  exchanged  it  for  other  lands  ? — 59 

The  wife  could  not  have  dower  of  both  estates,  but  should  be  put  to 
her  election. 

58.  Is  not  this  principle  also  introduced  into  the  New  York  revised  stat- 
utes ?— 59 

Yes  ;  and  the  widow  is  required  to  evince  her  election  to  take  dower 
out  of  the  lands  given  in  exchange,  by  the  commencement  of  proceedings 
to  recover  it,  within  one  year  after  her  husband's  death,  or  else  she  shall 
be  bound  to  take  her  dower  out  of  the  lands  received  in  exchange. 

59.  What  is  the  usual  way  of  barring  dower  in  this  country  ? — 59 

By  joining  with  the  wife  her  husband  in  a  deed  of  conveyance  of  the 
land,  containing  apt  words  of  grant  or  release  on  her  part,  and  acknowledg 
ing  the  same  privately,  apart  from  her  husband,  in  the  mode  prescribed  by 
the  statute  laws  of  the  several  states.  This  practice  is  probably  coeval  with 
the  settlement  of  the  country  ;  and  it  has  been  supposed  to  have  taken  its 
rise  in  Massachusetts,  from  the  colonial  act  of  1644.  The  wife  must 
join  with  her  husband  in  the  deed,  and  there  must  be  apt  words  of  grant, 
showing  an  intention  on  her  part  to  relinquish  her  dower. 

60.  May  dower  be  recovered  by  bill  in  equity,  as  well  as  by  action  at 
law?— 71 

Yes.  The  jurisdiction  of  chancery  over  the  claim  of  dower,  has 
been  thoroughly  examined,  clearly  asserted,  and  definitively  established. 
It  is  a  jurisdiction  concurrent  with  that  of  law  ;  and  when  the  legal  title  to 
dower  is  in  controversy,  it  must  be  settled  at  law ;  but  if  that  be  admitted 
or  settled,  full  and  effectual  relief  can  be  granted  to  the  widow  in  equity, 
both  as  to  the  assignment  of  dower,  and  the  damages.  The  equity 
jurisdiction  was  so  well  established,  and  in  such  exercise  in  England,  that 
Lord  Loughborough  said,  that  writs  of  dower  had  almost  gone  out  of  prac- 
tice. The  equity  jurisdiction  has  been  equally  entertained  in  this  country, 
though  the  writ  of  dower  unde  nihil  habet,  is  jthe  remedy  by  suit  most  in 
practice. 

61.  How  is  the  claim  of  dower  considered  in  New  Jersey  ? — 71 

It  is  considered,  as  emphatically,  if  not  exclusively,  within  the  cog- 
nizance of  the  common  law  courts. 

62.  What  are  the  surrogates  in  New  York,  in  addition  to  the  legal  rem- 


192  KENT'S  COMMENTARIES,  [VOL.  iv. 

edies  at  law  and  in  equity,  empowered  and  directed  to  do,  upon  the  appli- 
cation either  of  the  widow,  or  of  the  heirs  or  owners  ?— 72 

To  appoint  three  freeholders  to  set  offby  admeasurement  the  widow's 
dower. 

63.  Has  not  this  convenient  and  summary  mode  of  assignment  of  dower, 
under  the  direction  of  the  courts  of  probates  in  the  several  states,  proba- 
bly, in  a  great  degree,  superseded  the  common  law  remedy  by  action  ? — 72 

It  has. 

64.  When  a  widow  is" legally  seised  of  her  freehold  estate,  as  dower- 
ess,  may  she  bequeath  the  crop  in  the  ground  of  the  land  holden  by  her 
in  dower?— 72 

She  may. 

65.  To  what  is  every  tenant  for  life  entitled  of  common  right?— 72 

To  take  reasonable  estovers,  that  is,  wood  from  off  the  land,  for  fuel, 
fences,  agricultural  erections,  and  other  necessary  improvements. 

66.  Is  he  entitled,  through  his  lawful  representatives,  to  the  profits  of 
the  growing  crops,  in  case  the  estate  determines  by  his  death,  before  the 
produce  can  be  gathered? — 73 

He  is. 

67.  What  are  the  profits  termed,  and  on  what  principles  are  they  given  ? 
—73 

They  are  termed  emblements,  and  they  are  given  on  very  obvious 
principles  of  justice  and  policy,  as  the  time  of  the  determination  of  the 
estate  is  uncertain. 

68.  In  what  cases  does  this  rule  apply  ? — 73 

It  extends  to  every  case  where  the  estate  for  life  determines  by  the 
act  of  God,  or  by  the  act  of  the  law,  and  not  to  cases  where  the  estate  is 
determined  by  the  voluntary,  wilful,  or  wrongful  act  of  the  tenant  himself. 

69.  To  what  only  is  the  doctrine  of  emblements  applicable  ?— 73 

To  the  products  of  the  earth  which  are  annual,  and  raised  by  the 
yearly  expense  and  labour  of  the  tenant. 

70.  Are  the  tenants  by  the  curtesy,  and  in  dower,  and  for  life  or  years, 
answerable  for  waste  committed  by  a  stranger?— 77 

They  are  ;  and  they  take  their  remedy  over  against  him  ;  and  it  is  a 
general  principle,  that  the  tenant,  without  some  special  agreement  to  the 


tEC.   LV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  193 

contrary,  is  responsible  to  the  reversioner  for  all  injuries  amounting  to 
waste,  by  whomsoever  the  injury  may  have  been  committed,  with  the  ex- 
ception of  the  acts  of  God,  and  public  enemies,  and  the  acts  of  the  rever- 
sioner himself. 

71.  Is  the  tenant  like  a  common  carrier  ?— 77  t 

He  is  ;  and  the  law  in  this  instance  is  founded  on  the  same  great 
principles  of  public  policy.  The  landlord  cannot  protect  the  property 
against  strangers  ;  and  the  tenant  is  on  the  spot,  and  presumed  to  be  able 
to  protect  it. 

72.  What  were  the  ancient  remedies  for  waste  ?— 77 

The  ancient  remedies  were  writs  of  estrepement,  and  waste  ;  but  they 
are  now  essentially  obsolete. 

73.  Did  any  prohibition  against  waste  lay  against  the  lessee  for  life  or 
years,  deriving  his  interest  from  the  act  of  the  party,  at  common  law  ? — 77 

No  ;  the  remedy  was  confined  to  those  tenants  who  derived  their  in- 
terest from  the  act  of  the  law  ;  but  the  timber  cut  was,  at  common  law, 
the  property  of  the  owner  of  the  inheritance  ;  and  the  words  in  the  lease, 
without  impeachment  of  waste,  had  the  effect  of  transferring  to  the  lessee 
the  property  of  the  timber. 

74.  What  is  the  modern  remedy  in  chancery  ? — 77 

Injunction  ;  which  is  broader  than  that  at  law  ;  and  equity  will  in- 
terpose in  many  cases,  and  stay  waste,  where  there  is  no  remedy  at  law. 

75.  To  what  is  the  chancery  remedy  limited  ?— 77 

It  is  limited  to  cases  in  which  the  title  is  clear  and  undisputed  ;  and 
the  remedy  by  an  action  on  the  case  in  the  nature  of  waste,  has  been  held 
not  to  lie  for  permissive  waste. 

76.  Was  not  the  provision  in  the  statute  of  Gloucester,  giving,  by  way 
of  penalty,  the  forfeiture  of  the  place  wasted,  and  treble  damages,  re-en- 
acted in  New  York  and  Virginia?— 80 

It  was ;  and  it  is  the  acknowledged  rule  of  recovery,  in  some  of  the 
other  states,  in  the  action  of  waste. 

77.  But  has  not  the  writ  of  waste  gone  out  of  use,  and  what  is  its  sub- 
stitute ?  — 81 

It  has,  and  a  special  action  on  the  case,  in  the  nature  of  waste,  is  the 
substitute  ;  and  this  action,  which  has  superseded  the  common  law  reme- 
dy, relieves   the  tenant  from  the  penal  consequences  of  waste  under  the 
statute  of  Gloucester. 
25 


194  KENT'S  COMMENTARIES,  [vol..  IT. 

78.  What  does  the  plaintiff  in  this  action  upon  the  case  recover  ? — 81 

He  recovers  no  more  than  the  actual  damages  which  the  premises- 
have  sustained. 


LECTURE    LVI. 

OF  ESTATES  FOR  YEARS,  AT  WILL,  AND  AT 
SUFFERANCE. 

1.  What  is  a  lease  for  years  ? — 85 

It  is  a  contract  for  the  possession  and  profits  of  land,  for  a  determi- 
nate period,  with  the  recompense  of  rent  ;  and  it  is  deemed  an  estate  for 
years,  though  the  number  of  years  should  exceed  the  ordinary  limit  of 
human  life. 

2.  Is  an  estate  for  life  a  higher  and  greater  estate  than  an  estate  for 
years  ? — 85 

It  is  ;  notwithstanding  the  lease,  according  to  Sir  Edward  Coke, 
should  be  for  a  thousand  years  or  more  ;  and  if  the  lease  be  made  for  a 
less  time  than  a  single  year,  the  lessee  is  still  ranked  among  tenants  for 
years. 

3.  May  leases  for  years  be  made  to  commence  infuturo  ?— 94 

Yes  ;  for,  being  chattel  interests,  they  never  were  required  to  be 
created  by  feoffment  and  livery  of  seisin. 

4.  If  land  be  let  upon  shares,  for  a  single  crop  only,  does  that  amount 
to  a  lease  ? — 95 

No ;  the  possession  remains  in  the  owner. 

5.  How  may  a  term  for  years  be  defeated  ?  — 99 

By  way  of  merger,  when  it  meets  another  term  immediately  expec- 
tant thereon.  The  elder  term  merges  in  the  term  in  revesion  or  remain- 
der. A  merger  also  takes  place,  when  there  is  a  union  of  the  freehold  or 
fee  and  the  term,  in  one  person,  in  the  same  right,  and  at  the  same  time. 

6.  What  is  an  estate  at  will  ?  — 110 

An  estate  at  will  is  where  one  man  lets  land  to  another,  to  hold  at  the 
of  the  lessor, 


LEG.  LVII.]  REDUCED  TO  QUESTIONS   AND  ANSWERS.  195 

7.  Who  is  a  tenant  at  sufferance  ?  — 116 

A  tenant  at  sufferance  is  one  that  comes  into  possession  of  land  by 
lawful  title,  but  holdeth  over  by  wrong,  after  the  determination  of  his  in- 
terest. 

8.  What  is  the  general  rule  to  maintain  trespass  quare  clausum  ? — 119 

That  there  must  be  an  actual  possession  in  the  plaintiff  when  the 
trespass  was  committed,  or  a  constructive  possession  in  respect  of  the 
right  being  actually  vested  in  him.  The  ground  of  the  action  of  trespass 
is  the  injury  to  the  possession. 


LECTURE    LVII. 
OF  ESTATES  UPON  CONDITION. 

1.  What  are  estates  upon  condition,  and  how  are  they  divided  by  Little- 
ton?—121 

Estates  upon  condition  are  such  as  have  a  qualification  annexed  to 
them,  by  which  they  may,  upon  the  happening  of  a  particular  event,  be 
created,  or  enlarged,  or  destroyed.  They  are  divided  by  Littleton  into  es- 
tates upon  condition  implied  or  in  law,  and  estates  upon  condition  express 
or  in  deed. 

2.  What  are  estates  upon  condition  in  law  ? — 121 

They  are  such  as  have  a  condition  impliedly  annexed  to  them,  with- 
out any  condition  specified  in  the  deed  or  will. 

3.  Of  what  extraction  is  the  doctrine  of  estates  upon   condition,  and 
from  what  did  it  result  ? — 122 

It  is  of  feudal  extraction,  and  resulted  from  the  obligations  arising 
out  of  the  fuedal  relation. 

4.  What  are  conditions  in  a  deed  ? — 123 

The  conditions  are  expressly  mentioned  in  the  contract  between  the 
parties,  and  the  object  of  them  is  either  to  avoid,  or  defeat  an  estate ;  as 
if  a  man  (to  use  the  case  put  by  Littleton,)  enfeoffs  another  in  fee,  reserv- 
ing to  himself  and  his  heirs  a  yearly  rent,  with  an  express  condition  an 
aexed,  that  if  the  rent  be  unpaid,  the  feeff&r  and  his  heirs  .may  enter,  a»4 


196  KENT'S  COMMENTARIES,  [VOL.  iv 

hold  the  lands  free  of  the  feoffment.  So,  if  a  grant  be  to  A.  in  fee,  with 
a  proviso,  that  if  he  did  not  pay  twenty  pounds  by  such  a  day,  the  estate 
should  be  void.  It  is  usual,  in  the  grant,  to  reserve  in  express  terms,  to 
the  grantor  and  his  heirs,  a  right  of  entry  for  the  breach  of  the  condition  ; 
but  the  grantor  and  his  heirs  may  enter,  and  take  advantage,  of  the  breach, 
by  ejectment,  though  there  be  no  clause  of  entry. 

5.  How  are  conditions  in  a  deed  divided?  — 124 

Into  general  and  special.  The  former  puts  an  end  altogether  to  the 
tenancy,  on  entry  for  the  breach  of  the  condition  ;  but  the  latter  only  au- 
thorizes the  reversioner  to  enter  on  the  land,  and  take  the  profits  to  his 
own  use,  and  hold  the  land  by  way  of  pledge  until  the  condition  be 
fulfilled. 

6.  What  is  a  collateral  limitation  ? — 129 

It  is  another  refinement  belonging  to  this  abstruse  subject  of  limited 
and  conditional  estates.  It  gives  an  interest  for  a  specified  period,  but 
makes  the  right  of  enjoyment  to  depend  on  some  collateral  events,  as  a 
limitation  of  an  estate  to  a  man  and  his  heirs,  tenants  of  the  manor  of 
Dale,  or  to  a  woman  during  widowhood,  or  to  C.  till  the  return  of  B.  from 
Rome,  or  until  B.  shall  have  paid  him  twenty  pounds.  The  event  marked 
for  the  determination  of  the  estate  is  collateral  to  the  time  of  continuance. 


LECTURE    LVIII. 
.    OF  THE  LAW  OF  MORTGAGE. 

1.  What  is  a  mortgage  ? — 135 

It  is  the  conveyance  of  an  estate,  by  way  of  pledge,  for  the  security 
of  debt,  and  to  become  void  on  payment  of  it. 

2.  In  whom  is  the  legal  ownership  vested,  and  into  what  four  heads  is 
it  divisible  ?— 1 35 

The  legal  ownership  is  vested  in  the  creditor ;  but,  in  equity,  the 
mortgagor  remains  the  actual  owner,  until  he  is  debarred  by  his  own  de- 
fault, or  by  judicial  decree;  and  it  is  divided  under  the  following  heads. 

1.  Of  the  general  nature  of  mortgages. 

2.  Of  the  mortgagor's  estate  and  equity  of  redemption. 

3.  Of  the  estate  and  rights  of  the  mortgagee. 

4.  Of  foreclosure. 


LEG.  LVIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS,  197 

3.  From  what  does  the  Engish  law  of  mortgages  appear  to  have  been 
borrowed  ? — 136 

From  the  civil  law  ;  and  the  Roman  hypotheca  corresponded  very 
closely  with  the  description  of  a  mortgage  in  our  law. 

4.  On  what  is  the  use  of  mortgages  founded?  — 136 

On  the  wants  and  convenience  of  mankind,  and  would  naturally  fol- 
low the  progress  of  order,  civilization,  and  commerce. 

5.  Is  there  not  a  material  distinction  to  be  noticed  between  a  pledge 
and  a  mortgage  ? — 1 38 

Yes. 

6.  What  is  a  pledge  or  pawn  ? — 138 

It  is  a  deposit  of  goods,  redeemable  on  certain  terms,  and  either  with 
or  without  a  fixed  period  for  redemption. 

7.  May  a  mortgage  arise  in  equity,  out  of  the  transaction  of  the  parties, 
without  any  deed  or  express  contract  for  that  special  purpose  ? — 149 

Yes. 

8.  What  is  now  well  settled  in  the  English  law  on  this  subject  ? — 151 

It  is  settled  that  if  the  debtor  deposits  his  title  deeds  with  a  creditor, 
it  is  evidence  of  a  valid  agreement  for  a  mortgage,  and  amounts  to  an 
equitable  mortgage,  which  is  not  within  the  operation  of  the  statute  of 
frauds. 

9.  In  what  case,  and  when  was  the  earliest  decision  in  support  of  the 
doctrine  of  equitable  mortgages,  by  the  deposit  of  the  muniments  of  ti- 
tle ?— 151 

In  the  case  of  Russell  v.  Russell,  in  1783,  which  decision  is  now 
deemed  an  established  principle  in  English  law. 

10.  Has  not  the  vendor  of  real  estate  a  lien  for  the  purchase  money  ? 
—151 

He  has,  under  certain  circumstances. 

11.  Upon  the  execution  of  a  mortgage,  in  whom  does  the  estate  vest  ? 
—154 

It  vests  in  the  mortgagee,  subject  to  be  defeated  upon  performance  of 
the  condition. 

12.  Can  the  mortgagor  be  treated  by  the  mortgagee  as  a  trespasser  ? 
—154 


198  KENT'S  COMMENTARIES,  [VOL.  iv. 

No ;  he  cannot,  neither  shall  his  assignee,  until  the  mortgagee  has 
regularly  recovered  possession,  by  writ  of  entry  or  ejectment.  The 
mortgagor  in  possession  is  considered  to  be  so  with  the  mortgagee's  as- 
sent, and  is  not  liable  to  be  treated  as  a  trespasser. 

13.  Is  not  the  mortgagor  allowed  in  New  York,  even  to  sustain  an  ac- 
tion of  trespass  against  the  mortgagee,  or  those  claiming  under  him,  if  he 
undertakes  an  entry  while  the  mortgagor  is  in  possession  ? — 1 5 1 

He  is. 

14.  How  was  it  anciently  held  ?  — 155 

It  was  anciently  held,  that  so  long  as  the  mortgagor  remained  in  pos- 
session, with  the  mortgagee,  and  without  any  covenant  for  the  purpose,  he 
was  a  tenant  at  will. 

15.  What  is  the  equity  doctrine  in  regard  to  mortgages  ? — 159 

It  is,  that  the  mortgage  is  a  mere  security  for  the  debt,  and  only  a 
chattel  interest,  the  mortgagor  continues  the  real  owner  of  the  fee. 

16.  How  is  the  equity  of  redemption  considered  ? — 159 

It  is  considered  to  be  the  real  and  beneficial  estate,  tantamount  to 
the  fee  at  law ;  and  it  is,  accordingly,  held  to  be  descendible  by  inherit- 
ance, devisable  by  will,  and  alienable  by  deed,  precisely  as  if  it  were  an 
absolute  estate  of  inheritance  at  law. 

17.  May  not  the  mortgagor  exercise  the  rights  of  an  owner  while  in 
possession  ? — 160 

He  may,  provided  he  does  nothing  to  impair  the  security ;  and  a 
court  of  chancery  will  always,  on  the  application  of  the  mortgagee,  and 
with  that  object  in  view,  stay  the  commission  of  waste  by  process  of  in- 
junction. 

18.  Will  an  action  at  law,  by  the  mortgagee,  lie  for  the  commission  of 
waste  ?  — 161 

No  ;  because  he  has  only  a  contingent  interest ;  and  yet  actions  of 
trespass,  quare  clausum  fregit,  by  the  mortgagee,  for  the  commission  of 
•waste,  by  destroying  timber,  or  removing  fixtures,  have  been  sustained 
against  the  mortgagor  in  possession,  in  those  states  where  they  have  no 
separate  equity  courts  with  the  plenary  powers  of  a  court  of  chancery. 

19.  If  the  mortgagee  obtains  possession  of   the  mortgaged  premises 
before  foreclosure,  for  what  will  he  be  accountable  ? — 165 

For  the  actual  receipts  of  rents  and  profits,  and  nothing  more,  unless 
shey  were  reduced,  or  lost  by  his  wilful  default,  or  gross  negligence. 


LEC.  LVIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  199 

20.  What  does  the  mortgagee  impose  upon  himself  by  taking  possession, 
and  to  what  is  he  bound  ? — 1 66 

He  imposes  upon  himself  the  duty  of  a  provident  owner,  and  he  is 
bound  to  recover  what  such  an  owner  would,  with  reasonable  diligence, 
have  received. 

21.  May  he  charge  for  the  expenses  of  a  bailiff  or  receiver? — 166 

Yes,  when  it  becomes  proper  to  employ  one  ;  but  he  is  not  entitled 
to  make  any  charge,  by  way  of  commission,  for  his  own  trouble  in  col- 
lecting and  receiving  the  rents. 

22.  Upon  what  does  the  mortgagee's  right  essentially  depend  ?  — 168 

Upon  the  registry  of  his  mortgage,  and  upon  the  priority  of  that 
registry. 

23.  How  must  every  conveyance  of  real  estate  be  recorded  to  be  valid 
by  the  statute  law  of  New  York  ? — 168 

It  must  be  recorded  in  the  clerk's  office  of  the  county  in  which  the 
real  estate  is  situated,  after  being  duly  proved  or  acknowledged,  and  cer- 
tified, as  the  law  prescribes. 

24.  If  not  recorded,  in  what  respect  will  such  conveyance  be  void  1 
-167 

It  is  void  as  against  any  subsequent  purchaser,  or  mortgagee,  in  good 
faith,  and  for  a  valuable  consideration,  of  the  same  estate,  or  any  portion 
thereof,  whose  conveyance  shall  be  first  duly  recorded. 

25.  Has  a  mortgage  not  registered  a  preference  over  a  subsequent 
docketed  judgment  ? — 173 

Yes  ;  a  mortgage  unregistered  is  still  a  valid  conveyance,  and  binds 
the  estate. 

26.  Suppose  the  purchaser  at  the  sale  on  execution,  under  the  judg- 
ment, has  his  deed  first  recorded,  who  then  will  have  the  preference,  and 
on  what  will  the  question  of  right  turn  ? — 173 

The  purchaser  will  gain  a  preference  by  means  of  the  record  over 
the  mortgage,  and  the  question  of  right  turns  upon  the  fact  of  priority  of 
the  record,  in  cases  free  from  fraud. 

27.  How  is  the  rule  in  Pennsylvania  on  this  subject  ? — 173 

In  Pennsylvania  the  docketed  judgment  is  preferred,  and  not  unrea- 
sonably ;  for  there  is  much  good  sense,  as  well  as  simplicity  and  certainty,, 
in  the  proposition,  that  every  incumbrance,  whether  it  be  a  registered 
deed  or  docketed  judgment,  should,  in  cases  free  from  fraud,  be  satisfied 
according  to  the  priority  of  the  lien  upon  record,  which  is  open  for  pub- 
lic inspection-. 


200  KENT'S  COMMENTARIES,  [VOL.  iv. 

28.  In  what  one  instance  will  a  mortgage  have  a  preference  over  a  prior 
docketed  judgment  ? — 173 

In  the  case  of  a  sale  and  conveyance  of  land,  and  mortgage  taken  at 
the  same  time,  in  return,  to  secure  the  payment  of  the  purchase  money. 

29.  May  the  right  of  equity  of  redemption  be  barred  by  the  length  of 
time  ?— 186 

It  may. 

30.  If  the  mortgagee  omits  to  give  proper  notice,  whether  directed  by 
the  power  or  not ;  may  not  the  sale  be  impeached  in  chancery  ? — 189 

It  may. 

31.  Is  not  the  sale  under  a  power,  if  regularly  and  fairly  made,  accord- 
ing to  the  directions  of  the  statute,  a  final  and  conclusive  bar  to  the  equity 
of  redemption  ?  — 190 

It  is. 

32.  How  long  has  this  been  the  policy  and  language  of  the  law  of 
New  York?— 190 

From  the  time  of  the  first  introduction  of  the  statute  regulation  on 
the  subject,  in  March,  1774. 

33.  Will  a  sale  under  a  power,  as  well  as  under  a  decree,  bind  the  in- 
fant heirs  ?  — 191 

It  will ;  for  the  infant  has  no  day,  after  he  comes  of  age  to  show  cause, 
as  he  has  where  there  is  the  strict  technical  foreclosure,  and  as  he  gener- 
ally has  in  the  case  of  decrees. 

34.  Has  a  court  of  equity  a  competent  power  to  require,  by  injunction, 
and  enforce  by  process  of  execution,  delivery  of  possession  ? — 192 

It  has  ;  and  the  power  is  founded  upon  the  simple  elementary  princi- 
ple, that  the  power  of  the  court  to  apply  the  remedy  is  co-extensive  with 
its  jurisdiction  over  the  subject-matter. 

35.  Does  the  English  practice  of  opening  biddings  on  a  sale  of  mort- 
gaged pemises,  under  a  decree,  prevail  to  any  great  extent  in  this  coun- 
try ?  — 192 

No. 

36.  What  was  the  object  of  opening  biddings,  at  a  sale  of  mortgaged 
premises  ? — 192 

The  object  was  to  aid  creditors  by  an  increase  of  the  bid. 

37.  What  does  Lord  Eldon  say  on  this  subject  ? — 192 


LEC.  LIX.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  201 

He  condemned  the  practice,  as  injurious  to  the  sale  ;  and  he  observed, 
that  a  great  many  estates  were  thrown  away  upon  the  speculation  that 
there  would  be  an  opportunity  of  purchasing  afterwards  by  opening  bid- 
dings. 

38.  Does  or  does  not  the  English  method  of  selling  under  a  decree 
vary  greatly  from  ours  ? — 192 

It  does. 


LECTURE    LIX. 
OF  ESTATES  IN  REMAINDER. 

1.  Of  what  two  kinds  are  estates  in  expectancy  ? — 196 

The  first  is  created  by  the  act  of  the  parties,  and  called  a  remainder ; 
the  second  by  the  act  of  the  law,  and  called  a  reversion. 

2.  Under  what  nine  heads  does  the  commentator  treat  of  remainders  1 
-196 

They  are  as  follow  :  — 

1.  Of  the  general  nature  of  remainders. 

2.  Of  vested  remainders. 

3.  Of  contingent  remainders. 

4.  Of  the  rule  in  Shelley's  case. 

5.  Of  the  particular  estate. 

i          6.  Of  remainders  limited  by  way  of  use. 

7.  Of  the  time  within  which  a  contingent  remainder  must  vest. 

8.  Of  the  destruction  of  contingent  remainders. 

9.  Of  some  remaining  properties  of  contingent  remainders. 

3.  What  is  a  remainder? — 196 

It  is  a  remnant  of  an  estate  in  land,  depending  upon  a  particular 
prior  estate,  created  at  the  same  time,  and  by  the  same  instrument,  and 
limited  to  arise  immediately  on  the  determination  of  that  estate,  and  not 
in  abridgment  of  it. 

4.  How  by  the  New  York  revised  statutes  is  a  remainder   defined  ? 
—  197 

It  is  defined  to  be  an  estate  limited  to  commence  in  possession  at  a 
future  day,  on  the  determination,  by  lapse  of  time,  or  otherwise,  of  a  pre- 
cedent estate,  created  at  the  same  time. 

5.  Of  what  may  a  remainder  consist  ?  — 197 

26 


202  KENT'S  COMMENTARIES,  [VOL.  iv. 

It  may  consist  of  the  whole  remnant  of  the  estate  ;  as  in  the  case  of 
a  lease  to  A  for  years,  remainder  to  B  in  fee  ;  or  it  may  consist  of  a  part 
only  of  the  residuary  estate,  and  there  may  be  a  reversion  beyond  it,  left 
vested  in  the  grantor,  as  in  the  case  of  a  grant  to  A  for  years,  remainder 
to  B  for  life ;  or  there  may  be  divers  remainders  over,  exhausting  the 
whole  residuum  of  the  estate,  as  in  the  case  of  a  grant  to  A  for  years,  re- 
mainder to  B  for  life,  remainder  to  C  in  tail,  remainder  to  D  in  fee. 

6.  What  are  cross-remainders  1 — 201 

They  are  another  qualification  of  these  expectant  estates,  and  they 
may  be  raised  expressly  by  deed,  and  by  implication  in  a  devise.  If  a 
devise  be  of  one  lot  of  land  to  A,  and  of  another  lot  to  B,  in  fee,  and  if 
either  dies  without  issue,  the  survivor  to  take,  and  if  both  die  without 
issue,  then  to  C  in  fee,  A  and  B  have  cross-remainders  over  by  express 
terms  ;  and  on  the  failure  of  either,  the  other,  or  his  issue,  takes,  and  the 
remainder  to  C  is  postponed  ;  but  if  the  devise  had  been  to  A  and  B  of 
lots  to  each,  and  remainder  over  on  the  death  of  both  of  them,  the  cross- 
remainders  to  them  would  be  implied. 

7.  Of  how  many  sorts  are  remainders  ? — 201 
-Two  ;  vested  and  contingent. 

8.  What  is  the  definition  of  a  vested  remainder,  by  the  New  York  re- 
vised statutes  ? — 201 

It  is  "  when  there  is  a  person  in  being  who  would  have  an  immedi- 
ate right  to  the  possession  of  the  lands,  upon  the  ceasing  of  the  interme- 
diate or  precedent  estate." 

9.  Are  vested  remainders  actual  estates  ?— 204 

• 

They  are,  and  may  be  conveyed  by  any  of  the  conveyances  opera- 
ting by  force  of  the  statute  of  uses. 

10.  What  is  a  contingent  remainder? — 206 

A  contingent  remainder  is  limited  so  as  to  depend  on  an  event  or 
condition  which  is  dubious  and  uncertain,  and  may  never  happen  or  be 
performed,  or  not  until  after  the  determination  of  the  particular  estate. 

11.  Into  what  four  classes  are  contingent  remainders  divided  ? — 206 

1.  The  first  sort  is  where  the  remainder  depends  on  a  contingent 
determination  of  the  preceding  estate,  and  it  remains  uncertain  whether 
the  use  or  estate  limited  in  futuro  will  ever  vest.     Thus,  if  A  makes  a 
feoffment  to  the  use  of  B,  till  C  returns  from  Rome,  and  after  such  return 
remainder  over  in  fee,  the  remainder  depends  entirely  on  the   uncertain 
or  contingent  determination  of  the  estate  in  B,  by  the  return  of  C  from 
Rome. 

2.  The  second  sort  is  where  the  contingency  on  which  the  remain- 


LBC.  LIX.]  REDCTCED  TO  CIDESTIONS  AND  ANSWERS.  203 

der  is  to  take  effect  is  independent  of  the  determination  of  the  preceding 
estate,  and  must  precede  the  remainder.  As  if  a  lease  be  to  A  for  life, 
remainder  to  B  for  life,  and  if  B  die  before  A,  remainder  to  C  for  life  ; 
the  event  of  B  dying  before  A,  does  not  affect  the  determination  of  the 
preceding  estate,  but  it  is  a  dubious  event  which  must  precede,  in  order 
to  give  effect  to  the  remainder  in  C. 

3.  A  third  kind  is  where  the  condition  upon  which  the  remainder  is 
limited  is  certain  in  event,  but  the  determination  of  the  particular  estate 
may  happen  before  it.     Thus,  if  a  grant  be  made  to  A  for  life,  and,  after 
the  death  of  B,  to  C  in  fee  ;  here,  if  the  death  of  B  does  not  happen  until 
after  the  death  of  A,  the  particular   estate  is  determined  before  the   re- 
mainder is  vested,  and  it  fails  from  the  want  of  a  particular  estate  to  sup- 
port it. 

4.  The  fourth  class  of  contingent  remainders  is,  where  the  person 
to  whom  the  remainder  is  limited  is  not  ascertained,  or  not  in  being.     As 
in  the  case  of  a  limitation  to   two  persons  for  life,  remainder  to   the  sur- 
vivor of  them ;  or  in  the  case  of  a  lease  to  A  for  life,   remainder  to  the 
right  heirs  of  B,  then  living.     B  cannot  have  heirs  while  living,  and  if  he 
should  not  die  until  after  A,  the  remainder  is  gone,  because  the  particular 
estate  failed  before  the  remainder  could  vest. 

12.  Is  there  not  a  distinction  which  operates  by  way  of  exception  to 
the  third  class  of  contingent  remainders  ? — 209 

There  is  ;  thus,  a  limitation  for  a  long  term  of  years,  as,  for  instance, 
to  A  for  eighty  years,  if  B  should  live  so  long,  with  the  remainder  over, 
after  the  death  of  B,  to  C  in  fee,  gives  a  vested  remainder  to  C,  notwith- 
standing it  is  limited  to  take  effect  on  the  death  of  A,  which  possibly  may 
not  happen  until  after  the  preceding  estate  for  eighty  years. 

13.  Do  not  exceptions  exist  also  to  the  generality  of  the  rule  which 
governs  the  fourth  class  of  remainders  ? — 209 

They  do  ;  thus,  if  the  ancestor  takes  an  estate  of  freehold,  and  an 
immediate  remainder  is  limited  thereon,  in  the  same  instrument,  to  his 
heirs  in  fee,  or  in  tail,  the  remainder  is  not  contingent,  or  in  abeyance, 
but  is  immediately  executed  in  possession  in  the  ancestor,  and  he  be- 
comes seised  in  fee,  or  in  tail.  So,  if  some  intermediate  estate  for  life,  or 
in  tail,  be  interposed  between  the  estate  of  freehold  in  A  and  the  limita- 
tion to  his  heirs,  still  the  remainder  to  his  heirs  vests  In  the  ancestor,  and 
does  not  remain  in  contingency  or  abeyance.  If  there  be  created  an  es- 
tate for  life  to  A,  remainder  to  the  heirs  of  his  body,  this  is  not  a  contin- 
gent remainder  to  the  heirs  of  the  body  of  A,  but  an  immediate  estate  tail 
in  A  ;  or  if  there  be  an  estate  for  life  to  A,  remainder  to  B  for  life,  re- 
mainder to  the  right  heirs  of  A,  the  remainder  in  fee  is  here  vested  in  A, 
and  after  the  death  of  A,  and  the  determination  of  the  life  estate  in  B,  the 
heirs  of  A  take  by  descent  as  heirs,  and  not  by  purchase.  The  possibility 
that  the  freehold  in  A  may  determine  in  his  lifetime,  does  not  keep  the 
subsequent  limitation  to  his  heirs  from  attaching  in  him  ;  and  it  is  a  gene- 
ral rule,  that  when  the  ancestor  takes  an  estate  of  freehold,  and  there  be 


204  KENT'S  COMMENTARIES,  [VOL.  iv. 

in  the  same  conveyance  an  unconditional  limitation  to  his  heirs,  in  fee,  or 
in  tail,  either  immediately,  without  the  intervention  of  any  estate  of  free- 
hold between  his  freehold  and  the  subsequent  limitation  to  his  heirs,  or 
mediately  with  the  interposition  of  some  such  intervening  estate  ;  the  sub- 
sequent limitation  vests  immediately  in  the  ancestor,  and  becomes,  as  the 
case  may  be,  either  an  estate  of  inheritance  in  possession,  or  a  vested  re- 
mainder. 

14.  Must  the  freehold  in  the  ancestor  and  the  limitation  to  his  heirs, 
be  by  the  same  deed  or  instrument  ? — 212 

They  must,  or  they  will  not  consolidate  in  the  ancestor. 

15.  Must  there  be  a  particular  estate  to  precede  a  remainder  ? — 233 

Yes,  for  it  necessarily  implies,  that  a  part  of  the  estate  has  already 
been  carved. out  of  it,  and  vested  in  immediate  possession  in  some  other 
person. 

16.  Must  the  particular  estate  be  valid  in  law,  and  formed  at  the  same 
time,  and  by  the  same  instrument,  with  the  remainder ' — 233 

Yes. 

17.  If  the  particular  estate  be  void  in  its  creation,  or  be  defeated  after- 
wards, will  the  remainder  created  by  a  conveyance  at  common  law,  resting 
upon  the  same  title,  be  defeated  also  ? — 234 

It  will,  as  being,  in  such  a  case,  a  freehold  commencing  infuturo. 

18.  When  must  the  interest  to  be  limited,  as  a  remainder,  either  vested 
or  contingent,  commence  or  pass  out  of  the  grantor  ? — 248 

At  the  time  of  the  creation  of  the  particular  estate,  and  not  afterwards. 

19.  Must  the  remainder  be  so  limited,  as  to  await  the  natural  determi- 
nation of  the  particular  estate  ? — 249 

It  must,  and  cannot  take  effect  in  possession  upon  an  event  which 
prematurely  determines  it. 

20.  Does  not  the  New  York  revised  statutes  allow'  a  remainder  to  be 
limited  on  a  contingency  ? — 250 

They  do  ;  on  a  contingency,  which,  in  case  it  should  happen,  would 
operate  to  abridge  or  determine  the  precedent  estate  ;  and  every  such  re- 
mainder is  to  be  construed  a  conditional  limitation,  and  to  have  the  same 
effect  as  such  a  limitation  would  have  at  law. 

21.  If  the  particular  estate  determines,  or  be  destroyed,  before  the  con- 
tingency happens  on  which  the  expectant  estate  depended,  and  leaves  no 
right  of  entry,  is  not  then  the  remainder  annihilated  ? — 252 

Yes. 


LEG.  LX.] 


REDUCED  TO  QUESTIONS  AND  ANSWERS. 


205 


22.  By  what  are  conveyances  to  uses  governed  ? — 256 

By  doctrines  derived  from  courts  of  equity  ;  and  the  principles  which 
originally  controlled  them,  they  retained  when  united  with  the  legal  estate. 

23.  Are  all  contingent  and  executory  interests,  assignable  in  equity  ? 
—261 

They  are  ;  and  will  be  enforced,  if  made  for  a  valuable  consideration  ; 
and  it  is  settled,  that  all  contingent  estates  of  inheritance,  as  well  as 
springing  and  executory  uses,  and  possibilities,  coupled  with  an  interest, 
where  the  person  to  take  is  certain,  are  transmissible  by  descent,  and  de- 
visable. If  the  person  be  not  ascertained,  they  are  not  then  possibilities 
coupled  with  an  interest,  and  they  cannot  be  either  devised,  or  descend, 
at  common  law.  Contingent  and  executory,  as  well  as  vested  interests, 
pass  to  the  real  and  personal  representatives,  according  to  the  nature  of 
the  interest,  and  entitle  the  representatives  to  them  when  the  contingency 
happens. 


LECTURE     LX. 
OF  EXECUTORY  DEVISES. 

1.  What  is  an  executory  devise  ? — 263 

It  is  a  limitation  by  will,  of  a  future  contingent  .interest  in  lands, 
contrary  to  the  rules  of  limitation  of  contingent  estates  in  conveyances 
at  law. 

2.  What  if  the  limitation  by  will  does  not  depart  from  those  rules  pre- 
scribed for  the  government  of  contingent  remainders  ?  —  263 

It  is  in  that  case,  a  contingent  remainder,  and  not  an  executory  devise. 

3.  For  what  reason  was  executory  devises  instituted  ? — 263 

To  support  the  will  of  the  testator  ;  for  when  it  was  evident  that  he 
intended  a  contingent  remainder,  and  when  it  could  not  operate  as  such 
by  the  rules  of  law,  the  limitation  was  then,  out  of  indulgence  to  wills, 
held  to  be  good  as  an  executory  devise. 

4.  What  does  the  history  of  executory  devises  present  ?— 264 

An  interesting  view  of  the  stable  policy  of  the  English  common  law, 
which  abhorred  perpetuities,  and  the  determined  spirit  of  the  courts  of  jus- 
tice to  uphold  the  policy,  and  keep  property  free  from  the  fetters  of  entail- 
ments,  under  whatever  modification  or  form  they  might  assume. 

5.  What  says  the  learned  commentator,  respecting  perpetuities,  as  ap- 
plied to  real  estates  ? — 264 


206  KENT'S  COMMENTARIES,  [VOL.  iv. 

He  says,  they  were  conducive  to  the  power  and  grandeur  of  ancient 
families,  and  gratifying  to  the  pride  of  the  aristocracy  ;  but  they  were  ex- 
tremely disrelished  by  the  nation  at  large,  as  being  inconsistent  with  the 
free  and  unfettered  enjoyment  of  property. 

6.  For  what  were  common  recoveries  invented  1 — 264 

To  bar  estates  tail,  and  then,  on  the  other  hand  provisoes  and  con- 
ditions not  to  alien  with  a  cesser  of  the  estate  on  any  such  attempt  by  the 
tenant,  were  introduced  to  recall  perpetuities. 

7.  How  many  kinds  of  executory  devises  are  there  relative  to  real  es- 
tates ? — 268 

Two. 

8.  What  is  the  first?— 268 

The  first  is  where  the  devisor  parts  with  his  whole  estate,  but,  upon 
some  contingency,  qualifies  the  disposition  of  it,  and  limits  an  estate  on 
that  contingency.  Thus,  if  there  be  a  devise  to  A  for  life,  remainder  to 
B  in  fee,  provided  that  if  C  should,  within  three  months  after  the  death  of 
A,  pay  one  thousand  dollars  to  B,  then  to  C  in  fee,  this  is  an  executory 
devise  to  C,  and  if  he  dies  in  the  lifetime  of  A,  his  heirs  may  perform  the 
condition. 

| 

9.  What  is  the  second  ?— 258 

The  second  is  where  a  testator  gives  a  future  interest  to  arise  upon 
a  contingency,  but  does  not  part  with  the  fee  in  the  mean  time  ;  as  in  the 
case  of  a  devise  to  the  heirs  of  B,  after  the  death  of  B,  or  a  devise  to  B 
in  fee,  to  take  effect  six  months  after  the  testator's  death,  or  a  devise  to 
the  daughter  of  B,  who  shall  marry  C  within  fifteen  years. 

10.  In  what  three  very  material  points,  does  an  executory  devise,  differ 
from  a  remainder  ?— 269 

1.  An  executory  devise,  needs  not  any  particular  estate  to  precede 
and  support  it,  as  in  the  case  of  a  devise  in  fee  to  A  upon  his  marriage. 
Here  is  a  freehold  limited  to  commence  infuturo,  which  may  be  done  by 
devise,  because  the  freehold  passes  without  livery  of  seisin  ;  and  until 
the  contingency  happens,  the  fee  passes  in  the  usual  course  of  descent,  to 
the  heirs  at  law. 

2.  A  fee  may  be  limited  after  a  fee,  as  in  the  case  of  a  devise  of  land 
to  B  in  fee,  and  if  he  dies  without  issue,  or  before  the  age  of  twenty-one, 
then  to  C  in  fee. 

3.  A  term  for  years  may  be  limited  over,  after  a  life  estate  created 
in  the   same.     At  law,   the   grant  of  the  term  to  a  man   for  life  would 
have   been  a  total   disposition  of  the   whole  term.     Nor  can  an  execu- 
tory  devise  or   bequest  be   prevented   or  destroyed,  by  any   alteration 
whatsoever,  in  the  estate  out  of  which,  or  subsequently  to  which,  it  is  lim- 


LEC.  LX.]        REDUCED  TO  QUESTIONS  AND  ANSWERS.  207 

ited.     The  executory  interest  is  wholly  exempted  from  the  power  of  the 
first  devisee  or  taken. 

11.  If  an  executory  devise  be  limited  to  take  effect  after  a  dying  with- 
out heirs,  or  without  issue,  or  on  failure  of  issue,  or  without  leaving  issue, 
is  the  limitation  held  to  be  void  ? — 273 

It  is,  because  the  contingency  is  too  remote,  as  it  is  not  to  take  place 
until  after  an  indefinite  failure  of  issue. 

12.  What  is  a  definite  failure  of  issue  1—  273 

A  definite  failure  of  issue  is,  when  a  precise  time  is  fixed  by  the  will 
for  the  failure  of  issue,  as  in  the  case  of  a  devise  to  A,  but  if  he  dies  with- 
out lawful  issue  living  at  the  time  of  his  death. 

13.  What  is  an  indefinite  failure  of  issue  ?— 273 

It  is  a  proposition  the  very  converse  of  the  other,  and  means  a  fail- 
ure of  issue,  whenever  it  shall  happen,  sooner  or  later,  without  any  fixed, 
certain,  or  definite  period,  within  which  it  must  happen. 

14.  Have  not  the  New  York  revised  statutes,  put  an  end  to  all  sem- 
blance of  any  distinction  in  the  contingent  limitations  of  real  and  personal 
estates  ?— 283 

They  have,  by  declaring  that  all  the  provisions  relative  to  future  es- 
tates should  be  construed  to  apply  to  limitations  of  chattels  real,  as  well 
as  of  freehold  estates  ;  and  that  the  absolute  ownership  of  personal  pro- 
perty shall  not  be  suspended  by  any  limitation  or  condition  whatever,  for 
a  longer  period  than  during  the  continuance,  and  until  the  termination,  of 
not  more  than  two  lives  in  being  at  the  date  of  the  instrument  containing 
the  limitation  or  condition,  or,  if  it  be  a  will,  in  being  at  the  death  of  the 
testator. 

15.  When  there  is  an  executory  devise  of  the  real  estate,  and  the  free- 
hold is  not,  in  the  mean  time,  disposed  of,  to  whom  does  the  inheritance 
descend?— 283 

To  the  testator's  heir,  until  the  event  happens. 

16.  Have  not  the  New  York  revised  statutes,  allowed  the  accumulation 
of  rents  and  profits  of  real  estate,  for  the  benefit  of  one  or  more  persons, 
by  will  or  deed  ? — 285 

They  have,  but  the  accumulation  must  commence  either  on  the  crea- 
tion of  the  estate  out  of  which  the  rents  and  profits  are  to  arise,  and  it 
must  be  made  for  the  benefit  of  one  or  more  minors  then  in  being,  and 
terminate  at  the  expiration  of  their  minority  ;  or,  if  directed  to  commence 
at  any  time  subsequent  to  the  creation  of  the  estate,  it  must  commence 
within  the  time  authorized  by  the  statute  for  the  vesting  of  future  estates, 
and  during  the  minority  of  the  persons  for  whose  benefit  it  is  directed, 


208  KENT'S  COMMENTARIES,  [VOL.  IT. 

and  terminate  at  the  expiration  of  such  minority.  If  the  direction  for  ac- 
cumulation be  for  a  longer  time  than  during  the  minorities  aforesaid,  it 
shall  be  void  for  the  excess  of  time  ;  and  all  other  directions  for  the  ac- 
cumulation  of  rents  and  profits  of  real  estate  are  void. 


LECTURE    LXI. 
OF  USES  AND  TRUSTS. 

1.  What  is  a  use  ? — 288 

A  use  is  where  the  legal  estates  of  land  is  in  A,  in  trust,  that  B  shall 
take  the  profits,  and  that  A  will  make  and  execute  estates  according  to  the 
direction  of  B. 

2.  What  was  the  trustee  to  all  intents  and  purposes  ? — 288 
He  was  the  real  owner  of  the  estate  at  law. 

3.  What  title  had  the  cestui  que  use  ? — 288 

He  had  only  a  confidence  or  trust,  for  which  he  had  no  remedy  at. 
the  common  law. 

4.  Did  uses  exist  under  the  Roman  law,  and  if  so,  under  what  name  ? 
—288 

They  did  exist  under  the  name  of  Jtdei  commissa,  or  trusts. 

5.  By  whom  were  they  introduced,  and  for  what  purpose  ?— 288 

They  were  introduced  by  testators,  to  evade  the  municipal  law,  which 
disabled  certain  persons,  as  exiles  and  strangers,  from  being  heirs  or  le- 
gatees. 

6.  Was  not  the  contrast  between  uses   and  estates  at  law,  extremely 
striking  ? — 291 

Yes  ;  when  uses  were  created  before  the  statute  of  uses,  there  was  a 
confidence  that  the  feoffee  would  suffer  the  feoffer  to  take  the  profits,  and 
that  the  feoffee,  upon  the  request  of  the  feoffer,  or  notice  of  his  will,  would 
execute  the  estate  to  the  feoffor  and  his  heirs,  or  according  to  his  direc- 
tions. When  the  direction  was  complied  with,  it  was  essentially  a  con- 
veyance by  the  feoffer,  through  his  agent  the  feoffee,  who,  though  even  an 
infant  or  feme  covert,  was  deemed  in  equity  competent  to  execute 
power,  and  appoint  a  use.  The  existing  law  of  the  land  was  equally  eluded 
in  the  selection  of  the  appointee,  who  might  be  a  corporation,  or  alien, 
or  traitor,  and  in  the  mode  of  the  direction,  which  might  be  by  parol. 

7.  How  do  shifting  or  secondary  uses  take  effect  ?— 296 


LEG.  LXI.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  209 

They  take  effect  in  derogation  of  some  other  estate,  and  are  either 
limited  by  the  deed  creating  them,  or  authorized  to  be  created  by  some 
person  named  in  it. 

8.  To  what  are  springing  uses  limited  ? — 297 

They  are  limited  to  arise  on  a  future  event,  where  no  preceding 
estate  is  limited,  and  they  do  not  take  effect  in  derogation  of  any  preceding 
interest. 

9.  To  what  are  future  or  contingent  uses  limited  ?— 299 

To  take  effect  as  remainders.  If  lands  be  granted  to  A,  in  fee,  to  the 
use  of  B,  on  his  return  from  Rome,  it  is  a  future  contingent  use,  because 
it  is  uncertain  whether  B  will  ever  return. 

10.  If  the  use  limited  by  deed  expired,  or  could  not  vest,  or  was  not  to 
vest  but  upon  a  contingency,  to  whom  did  the  use  result  back? — 299 

To  the  grantor,  who  created  it. 

11.  Is  the  rule  the  same  when  no  uses  were  declared  by  the  convey- 
ance ?—  298 

Yes. 

12.  What  objections  were  made  to  uses  and  trusts,  as  they  now,  or  then 
did  exist,  in  the  remarks  which  accompanied  the  bill  for  the  revision  of  the 
New  York  statutes  ? — 299 

The  three  following,  viz  : 

1.  They  render  conveyances  more  complex,  verbose,  and  expressive 
than  is  requisite,  and  perpetuate  in  deeds  the  use  of  a  technical  language, 
unintelligible  as  a  "   mysterious  jargon,"  to  all  but  thev  members  of  one 
learned  profession. 

2.  Limitations  intended  to  take  effect  at  a  future  day,  may  be  defeated 
by  a  disturbance  of  the  seisin,  arising  from  a  forfeiture  or  a  change  of  the 
estate  of  the  person  seised  to  the  use. 

3.  The  difficulty  of  determining  whether  a  particular  limitation  is 
to  take  effect  as  an  executed  trust,  as  an  estate  at  common  law,  or  as  a 
trust. 

13.  How  were  these  objections  deemed  ? — 299 

They  were  deemed  so  strong  and  unanswerable  as  to  induce  the  re- 
visers to  recommend  the  entire  abolition  of  uses.  They  considered,  that 
by  making  a  grant,  without  the  actual  delivery  of  possession,  or  livery  of 
seisin,  effectual  to  pass  every  estate  and  interest  in  land,  the  utility  of 
conveyances  deriving  their  effect  from  the  statute  of  uses  would  be  super- 
seded ;  and  that  the  new  modifications  of  property  which  uses  have  sanc- 
tioned, would  be  preserved  by  repealing  the  rules  of  the  common  law,  by 
which  they  were  prohibited,  and  permitting  every  estate  to  be  created  by 
grant  which  can  be  created  by  devise. 
27 


210  KENT'S  COMMENTARIES,  [VOL.  ir. 

14.  What  have  the  New  York  revised  statutes  declared  respecting  uses 
and  trusts,  except  as  authorized  or  modified  in  the  article  ? — 299 

They  have  declared,  that  they  were  abolished,  and  every  estate  and 
interest  in  land  is  declared  to  be  a  legal  right,  or  cognizable  in  the  courts 
of  law,  except  where  it  is  otherwise  provided  in  the  chapter  ;  and  every 
estate  held  as  a  use  executed  under  any  former  statute,  confined  as  a 
legal  estate.  The  conveyance  by  grant  is  a  substitute  for  the  conveyance  to 
uses ;  and  the  future  interests  in  land  may  be  conveyed  by  grant  as  well 
as  by  devise.  The  statute  gives  the  legal  estate,  by  virtue  of  a  grant, 
assignment,  or  devise  ;  and  the  word  assignment  was  introduced  to  make 
the  assignment  of  terms,  and  other  chattel  interests,  pass  the  legal  interest 
in  them,  as  well  as  in  freehold  estates  ;  though,  under  the  English  law, 
the  use  in  chattel  interests  was  not  executed  by  the  statute  of  uses. 

15.  Will  not  the  operation  of  the  statute  of  New  York,  in  respect  to  the 
doctrine  of  uses,  have  some  slight  effect  upon  the  forms  of  conveyance  ? 
-300 

Yes,  and  it  may  give  them  more  brevity  and  simplicity.  But  it  would 
be  quite  visionary  to  suppose  that  the  science  of  law,  even  in  the  depart- 
ment of  conveyancing,  will  not  continue  to  have  its  technical  language, 
and  its  various,  subtle,  and  profound  learning,  in  common  with  every  other 
branch  of  human  science.  The  transfer  of  property  assumes  so  many 
modifications,  to  meet  the  varying  exigencies  of  speculation,  wealth,  and 
refinement,  and  to  supply  family  wants  and  wishes,  the  doctrine  of  con- 
veyancing must  continue  essentially  technical,  under  the  incessant  opera- 
tion of  skill  and  invention.  The  abolition  of  uses  does  not  appear  to  be  of 
much  moment,  but  the  changes  which  the  law  of  trusts  has  been  made  to 
undergo,  becomes  extremely  important. 

16.  To  what  extent  are  express  or  active  trusts  allowed  ? — 309 

1 .  To  sell  land  for  the  benefit  of  creditors. 

2.  To  sell,  mortgage,  or  lease  lands,  for  the  benefit  of  legatees,  or 
for  the  purpose  of  satisfying  any  charge  thereon. 

3.  To  receive  the  rents  and  profits  of  lands,  and  apply  them  to  the 
use  of  any  person ;  or  to  accumulate  the  same   for  the   purposes,  and 
within  the  limits,  already  mentioned. 

17.  May  the  court  accept  the  resignation  of  a  trustee  ?  —  310 

Yes  ;  and  it  may  also  discharge  him,  or  remove  him  for  just  cause, 
and  supply  the  vacancy,  or  any  want  of  trustees,  in  its  discretion. 

18.  Was  it  not  the  object  of  the  New  York  revised  statutes  to  abolish 
all  trusts,  except  the  express  trusts  which  are  enumerated,  and  resulting 
trusts  ?— 311 

It  was. 


LF.C.  LXII.]  REDUCED    TO  QUESTIONS  AND  ANSWERS.  211 

LECTURE    LXII. 
OF  POWERS. 

1.  What  are  the  powers  with  which  we  are  most  familiar  in  this  coun- 
try?—315 

The  common  law  authorities,  of  simple  form  and  direct  application. 
But  the  powers  now  alluded  to,  are  of  a  more  latent  and  mysterious  char- 
acter, and  they  derive  their  effect  from  the  statute  of  uses. 

2.  What  are  those  powers,  and  how  have  the  estates,  arising  from  the 
execution  of  them  been  classed? — 315 

They  are  declarations  of  trust,  and  modifications  of  future  uses  ;  and 
the  estates  arising  from  the  executions  of  them  have  been  classed  under 
the  head  of  contingent  uses. 

3.  What  are  all  these  powers  in  point  of  fact  ? — 315 

Powers  of  revocations  and  appointment. 

f  ' 

4.  Who  are  the  parties  concerned  in  making  a  power  ? — 316 

They  are  the  donor,  who  confers  the  power,  the  appointor  or  donee, 
who  executes  it,  and  the  appointee,  or  person  in  whose  favour  it  is  exe- 
cuted. 

5.  How  are  powers  usually  classed  ? — 317 

1.  Powers  appendant,  or  appurtenant. 

2.  Powers  collateral,  or  in  gross. 

3.  Powers  simply  collateral. 

This  division  is  thought  too  artificial.  Mr.  Powell  also  divides 
powers  into  general  and  particular  powers.  This  classification  of  powers 
is  admitted  to  be  important  only  with  reference  to  the  ability  of  the  donee 
to  suspend,  extinguish,  or  merge  the  power. 

6.  What  is  the  general  rule  respecting  a  power  ? — 317 

That  it  shall  not  be  exercised  in  derogation  of  a  prior  grant  by  the 
appointor.  But  this  whole  division  of  powers  is  condemned,  as  too  arti- 
ficial and  arbitrary. 

7.  How  is  a  power  defined  by  the  New  York  revised  statutes  ? — 318 

To  be  an  authority  to  do  some  act  in  relation  to  lands,  or  the  crea- 
tion of  estates  therein,  or  of  charges  thereon,  which  the  owner,  granting 
or  reserving  such  power,  might  himself  lawfully  perform. 


212  KENT'S  COMMENTARIES,  [VOL.  iv. 

8.  How  has  the  statute  of  New  York  divided  it? — 317 

Into  general  and  special.  A  general  power  authorizes  the  alienation 
in  fee,  by  deed,  will,  or  charge,  to  any  alienee  whatever.  The  power  is 
special  when  the  appointee  is  designated,  or  a  lesser  interest  than  a  fee  is 
authorized  to  be  conveyed.  It  is  beneficial  when  no  person  other  than 
the  grantee  has,  by  the  terms  of  its  creation,  any  interest  in  its  execution. 
A  general  power  is  in  trust,  when  any  person  other  than  the  grantee  of 
the  power  is  designated  as  entitled  to  the  whole,  or  part  of  the  proceeds, 
or  other  benefit  to  result  from  the  execution  of  the  power. 

9.  When  is  a  power  special?— 318 

A  power  is  special  in  trust,  when  the  dispositions  it  authorizes  are 
limited  to  be  made  to  any  person  other  than  the  grantee  of  the  power,  en- 
titled to  the  proceeds  or  benefit  thereof,  or  when  any  person  other  than 
the  grantee  is  designated  as  entitled  to  any  benefit  from  the  disposition  or 
charge  authorized  by  the  power. 

10.  Is  any  formal  set  of  words  requisite  to  create  or  reserve  a  power  T 
—319 

None  at  all,  it  may  be  created  by  deed  or  will. 

11.  When  the  mode  in  which  a  power  is  to  be  executed  is  not  defined, 
in  what  may  it  be  executed  ? — 329 

It  may  be  executed  by  deed  or  will,  or  simply  by  writing. 

12.  May  the  power  be  executed  without  reciting  it  ? — 334 

It  may,  or  ever  referring  to  it,  provided  the  act  shows  that  the  donee 
had  in  view  the  subject  of  the  power. 

13.  May  a  power  of  revocation  and  new  appointment  be  reserved  in  a 
deed  executing  a  power  ? — 336 

Yes,  though  the  deed  creating  the  power  does  not  authorize  it,  and 
such  powers  may  be  reserved  toties  quoties- 

14.  Have  not  the  New  York  revised  statutes  given  due  stability  to 
powers  that  are  beneficial,  or  in  trust  ? — 337 

They  have ;  and  we  would  particularly  refer  the  student  and  gene- 
ral reader  to  the  Commentaries  at  large  for  more  information  on  this  sub- 
ject. The  learned  commentator  shows  that  the  statutes  have  also  cleared 
away,  and  very  wisely,  many  difficulties,  and  given  due  and  adequate  re- 
lief to  the  creditor.  To  use  his  own  words  of  the  doctrine  of  uses,  trusts, 
and  powers,  he  says,  "  they  are  the  foundation  of  those  voluminous  set- , 
tleraents  to  which  we  in  this  country  are  comparatively  strangers  :  the 
groundwork  of  the  operation  of  a  family  settlement  is  a  conveyance  of 
the  fee  to  the  grantee  or  releasee  to  uses  ;  then  follow  the  various  modi- 


LEC.  LXIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS. 


213 


fied  interests  in  the  shape  of  future  uses,  which  constitute  the  essential 
part  of  the  settlement ;  and  with  the  laws  relating  to  this  subject  no  one 
can  become  too  well  acquainted ;  every  citizen  of  the  United  States 
should  be  well  informed  on  it." 


LECTURE    LXIII. 

• 

OF  ESTATES  IN  REVERSION. 

1.  What  is  a  reversion  ?  — 353 

A  reversion,  is  the  return  of  land  to  the  grantor,  and  his  heirs,  after 
the  grant  is  over  ;  or,  according  to  the  formal  definition  in  the  New  York 
revised  statutes  ;  it  is  the  residue  of  an  estate  left  in  the  grantor,  or  his 
heirs,  or  in  the  heirs  of  a  testator,  commencing  in  possession  on  the  de- 
termination of  a  particular  estate  granted  or  devised. 

2.  What  does  a  reversion  necessarily  assume  ? — 353 

That  the  original  owner  has  not  parted  with  his  whole  estate  or  in- 
terest in  the  land. 

3.  From  what  does  sir  William  Blackstone  say,  that  the  doctrines  of 
reversion  are  divided  ?— 353 

From  the  feudal  constitution,  but  says  our  learned  commentator,  it 
would  have  been  more  correct,  to  have  said,  that  some  of  the  incidents 
attached  to  a  reversion  were  of  feudal  growth,  such  as  fealty,  and  the  vary- 
ing rule  of  descent  between  the  cases  of  a  reversion  arising  out  of  the 
original  estate,  and  one  limited  by  the  grant  of  a  third  person. 


4 1  D 
-3?3 


oes  a  reversion  arise  by  operation   of  law,  or  by  deed,  or  will  ? 


By  operation  of  law.  And  it  is  a  vested  interest  or  estate,  inasmuch 
as  the  person  entitled  to  it  has  a  faxed  right  of  future  enjoyment. 

5.  Is  not  a  reversion  an  incorporeal  hereditament?  —  354 

It  is,  and  may  be  conveyed  either  in  whole,  or  in  part,  by  grant,  with- 
out livery  of  seisin. 

6.  Are  reversions  expectant  on  the  determination  of  estates  for  years, 
immediate  assets  in  the  hands  of  the  heir  ? — 354 

They  are.  But  the  reversion  expectant  on  the  determination  of  an 
estate  for  life,  is  not  immediate  assets  during  the  continuance  of  the  life 
estate,  and  the  creditor  takes  judgment  for  assets  injuturo. 


214  KENT'S  COMMENTARIES,  [VOL.  iv. 

7.  Is  the  reversioner  entitled  to  his  action  for  an  injury  done  to  the  in- 
heritance ?— 355 

He  is,  because  he  has  a  vested  interest. 

8.  What  are  the  usual  incidents  to  the  reversion,  under  the   English 
law?— 355 

Fealty  and  rent,  fealty,  in  its  feudal  sense,  does  not  now  exist  in  this 
country  ;  but  rent  is  a  very  important  incident,  and  passes  with  a  grant  of 
the  reversion. 


LECTURE    LXIV. 
OF  A  JOINT  INTEREST  IN  ESTATES. 

1.  In  what  two  ways  may  joint  interest  in  land  be  had  ?— 357 
Either  in  the  title  or  in  the  possession. 

2.  Who  are  joint  tenants  ? — 357 

Joint  tenants  are  persons  who  own  lands  by  a  joint  title,  created  ex- 
pressly by  one  and  the  same  deed  or  will.  They  hold  uniformly  by  pur- 
chase. 

3.  What  is  the  doctrine  of  survivorship,  or  jus  accrescendi  ? — 360 

It  is  the  distinguishing  incident  of  title  by  joint  tenancy  ;  and,  there- 
fore, at  common  law,  the  entire  tenancy  or  estate,  upon  the  death  of  any 
of  the  joint  tenants,  went  to  the  survivors,  and  so  on  to  the  last  survivor, 
who  took  an  estate  of  inheritance. 

4.  Did  the  common  law  favour  the  title  by  joint  tenancy  ? — 361 
It  did,  by  reason  of  the  right  of  survivorship. 

5.  When  were  estates  in  joint  tenancy  abolished  in  New  York  ?  —  361 
As  early  as  February,  1786. 

6.  But  what  have  the   New  York  revised  statutes  re-enacted  on  this 
subject  ?— 361 

They  have  re-enacted  the  provision,  and  with  the  further  declaration, 
that  every  estate,  vested  in  executors  or  trustees,  as  such,  shall  be  held  in 
joint  tenancy. 

7.  Can  husband  and  wife  take  by  moieties  ? — 362 

They  cannot.  But  they  are  both  seised  of  the  entirety,  and  the  sur- 
vivor takes  the  whole ;  and,  during  their  joint  lives,  neither  of  them  can 


LEC.  LXIV.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  215 

alien  so  as  to  bind  the  other.  If  an  estate  be  conveyed  expressly  in 
joint  tenancy,  to  a  husband  and  wife,  and  to  a  stranger,  the  latter  takes  a 
moiety,  and  the  husband  and  wife,  as  one  person,  the  other  moiety. 

8.  How  would  it  be  if  the  husband  and  wife  had  been  seised  of  the 
lands  as  joint  tenants,  before  their  marriage  ? — 363 

They  would  continue  joint  tenants  afterwards,  as  to  that  land,  and 
the  consequences  of  joint  tenancy,  such  as  severance,  partition,  and  the 
jus  accrescendi,  would  apply.  It  is  said,  however,  to  be  now  understood, 
that  husband  and  wife  may,  by  express  words,  be  made  tenants  in  common 
by  a  gift  to  them  during  coverture. 

9.  How  may  joint  tenancy  be  destroyed  ? — 363 

It  may  be  destroyed  by  destroying  any  of  its  constituent  unities,  ex- 
cept that  of  time. 

10.  What  is  the  proper  conveyance  between  joint  tenants  ? — 364 

It  is  a  release  ;  and  each  has  the  power  of  alienation  over  his  aliquot 
share. 

11.  How  may  joint  tenants  sever  the  tenancy  ?— 364 

Either  voluntarily  by  deed,  or  they  may  compel  a  partition  by  writ  of 
partition,  or  by  bill  in  equity. 

It  is  to  be  presumed,  that  the  English  statutes  of  31  and  32  Henry 
VIII.  have  been  generally  re-enacted  or  adopted  in  this  country,  and,  prob- 
ably, with  increased  facilities  for  partition.  They  were  re-enacted  in  New 
York,  6th  of  February,  1788  ;  and  the  New  York  revised  statutes  have 
made  further  and  more  specific  and  detailed  provisions  for  the  partition  of 
lands,  held  either  in  joint  tenancy,  or  in  common,  and  they  have  given 
equal  jurisdiction  over  the  subject  to  the  courts  of  law,  and  of  equity.  In 
Massachusetts  also,  by  statute,  the  writ  of  partition  is  not  only  given,  but 
partition  may  be  effected  by  petition  without  writ. 

12.  Is  not  the  jurisdiction  of  chancery  in  awarding  partition,  well  es- 
tablished, in  England,  by  a  long  series  of  decisions  ? — 364 

It  is,  and  has  been  found,  by  experience,  to  be  a  jurisdiction  of  great 
public  convenience. 

13.  When  only  does  a  court  of  equity  interfere  ?  — 364 

Never,  unless  the  title  be  clear,  and  never  where  the  title  is  denied,  or 
suspicious,  until  the  party  seeking  a  partition  has  had  an  opportunity  to  try 
his  title  at  law.  The  same  principle  has  been  acted  upon  in  the  courts  of 
equity  in  this  country. 

14.  What  have  the  New  York  revised  statutes  prescribed  to  the  courts 
of  law  and  the  court  of  chancery,  in  respect  to  partition  ? — 365 


216  KENT'S  COMMENTARIES,  [VOL.  iv. 

That,  whenever  there  shall  be  a  denial  of  co-tenancy,  an  issue 
shall  be  formed,  and  submitted  to  a  jury  to  try  the  fact ;  and  the  respective 
rights  of  the  parties  are  to  be  ascertained  and  settled  before  partition  be 
made,  or  a  sale  directed. 

15.  Who  does  a  final  judgment  or  decree,  upon  partition  at  law,  under 
the  revised  statutes,  bind  ? — 365 

It  binds  all  parties  named  in  the  proceedings,  and  having,  at  the  time, 
any  interest  in  the  premises  divided,  as  owners  in  fee,  or  as  tenants  for 
years  ;  or  as  entitled  to  the  reversion,  remainder  or  inheritance,  after  the 
termination  of  any  particular  estate  ;  or  as  having  a  contingent  interest 
therein,  or  an  interest  in  any  undivided  share  of  the  premises,  as  tenants 
for  years,  for  life,  by  the  curtesy,  or  in  dower. 

But  the  judgment  does  not  affect  persons  having  claims  as  tenants  in 
dower,  by  the  curtesy,  or  for  life,  in  the  whole  of  the  premises  subject  to 
the  partition.  It  is  likewise  provided,  in  respect  to  the  exercise  of  equity 
jurisdiction,  in  the  case  of  partition,  that  if  it  should  appear  that  equal  par- 
tition cannot  be  made  without  prejudice  to  the  rights  and  interests  of  some 
of  the  parties,  the  court  may  decree  compensation  to  be  made  by  one  party 
to  the  other,  for  equality  of  partition,  according  to  the  equity  of  the  case. 
This  is  the  rule  in  equity,  independent  of  any  statute  provision,  when 
equity  of  partition  cannot  otherwise  be  made. 

16.  From  what  does  an  estate  in  coparcenary  always  arise  1  —  366 
It  always  arises  from  descent. 

17.  In  what  three  unities  do  coparceners  resemble  joint  tenants? — 366 
Unities  of  title,  interest,  and  possession. 

18.  But  do  not  coparceners  differ  from  joint  tenants  in  other  respects 
in  a  most  material  degree  ?— 366 

They  do.  They  are  said  to  be  seised  like  joint  tenants,  per  my  et 
per  tout ;  and  yet  each  parcener  has  a  devisible  interest ;  and  the  doc- 
trine of  survivorship  does  not  apply  to  them.  The  shares  of  the  partners 
descend  severally  to  their  respective  heirs.  They  may  sever  their  pos- 
session, and  dissolve  the  estate  in  coparcenary,  by  consent,  or  by  writ  of 
partition  at  common  law. 

19-  Who  are  tenants  in  common  ? — 367 

They  are  persons  who  hold  by  unity  of  possession  ;  and  they  may 
hold  by  several  and  distinct  titles,  or  by  title  derived  at  the  same  time,  by 
the  same  deed  or  descent.  In  this  respect  the  American  law  differs  from 
the  English  common  law. 


LEG.  LXV.]        REDUCED  TO  QUESTIONS  AND  ANSWERS.  217 

LECTURE    LXV. 
OF  TITLE  BY  DESCENT. 

1.  What  must  there  be  to  constitute  a  perfect  title  ? — 371 

There  must  be  the  union  of  actual  possession,  the  right  of  posses- 
sion, and  right  of  property.  These  several  constituent  parts  of  title  may 
be  divided  and  distributed  among  several  persons,  so  that  one  of  them  may 
have  the  possession,  another  the  right  of  possession,  and  the  third  the 
right  of  property.  Unless  they  all  be  united  in  one  and  the  same  party, 
there  cannot  be  that  consolidated  right,  that  jus  duplicatum,  or  droit  droit, 
or  the  jus  proprietors  et  possessions,  which,  according  to  the  ancient 
English  law,  formed  a  complete  title. 

2.  By  what  two  modes  may  title  to  land  be  acquired  ? — 372 

By  descent  and  by  purchase  ;  the  one  is  acquired  by  operation  of 
law,  and  the  other  by  the  act  or  agreement  of  the  parties. 

3.  What  is  a  descent  or  hereditary  possession  ? — 374 

It  is  the  title  whereby  a  person,  on  the  death  of  his  ancestor,  acquires 
his  estate  by  right  of  representation  as  his  heir.  In  these  United  States, 
the  English  common  law  of  descents,  in  its  most  essential  features,  has 
been  universally  rejected,  and  each  state  has  established  a  law  of  descents 
for  itself. 

4.  What  is  the  first  rule  of  inheritance  ? — 375 

It  is,  that  if  a  person  owning  real  estate  dies  seised,  or  as  owner,  with- 
out devising  the  same,  the  estate  shall  descend  to  his  lawful  descendants 
in  the  direct  line  of  lineal  descent;  and  if  there  be  one  person,  then  to 
him  or  her  alone  ;  and  if  more  than  one  person,  and  all  of  equal  degree  of 
consanguinity  to  the  ancestor,  then  the  inheritance  shall  descend  to  the 
several  persons  as  tenants  in  common,  in  equal  parts,  however  remote 
from  the  intestate  the  common  degree  of  consanguinity  may  be. 
I  ? 

5.  Is  not  this  rule  in  favour  of  the  equal  claims  of  the  descending  line, 
in  the  same  degree  ? — 375 

Yes.  Without  distinction  of  sex,  to  the  exclusion  of  all  other  claim- 
ants. Thus,  if  A.  dies,  owning  real  estate,  and  leaves,  for  instance,  two 
sons  and  a  daughter,  or,  instead  of  children,  leaves  only  two  or  more  grand- 
children, these  persons  being  his  lineal  descendants,  and  all  of  equal  de- 
gree of  consanguinity  to  the  common  ancestor,  that  is,  being  all  of  them 
either  his  children,  or  grandchildren,  or  great  grandchildren,  they  will 
partake  equally  of  the  inheritance  as  tenants  in  common. 
28 


218  KENT'S  COMMENTARIES,  [VOL.  iv. 

6.  When  was  this  rule  of  descent  prescribed  by  the  statute  of  New 
York  ?— 375 

On  the  23d  of  February,  1786  ;  and  it  has  been  adopted  by  the  New 
York  revised  statutes. 

7.  To  what  extent  does  this  rule  prevail  in  the  United  States  ?— 375 

It  prevails  in  all  the  United  States,  with  this  variation,  that,  in  South 
Carolina,  the  widow  takes  one-third  of  the  estate  in  fee,  and  in  Georgia, 
she  takes  a  child's  share  in  fee,  if  there  be  any  children,  and  if  none,  she 
then  takes  a  moiety  of  the  estate ;  and  in  South  Carolina  or  Georgia, 
the  whole  estate.  In  Rhode  Island,  New  Jersey,  North  and  South  Caro- 
lina, and  in  Louisiana,  the  claimants  take,  in  all  cases,  per  stirpes,  though 
standing  in  the  same  degree.  In  Alabama  the  descendants  of  children 
also  take^jer  stirpes. 

8.  Did  not  the  rule  of  common  law,  under  the  statute  of  descents  for- 
merly exist  in  New  York  ? — 388 

Yes,  until  1786  ;  and  the  heir  was  to  deduce  his  title  from  the  person 
dying  seised.  But  the  New  York  revised  statutes  have  wisely  altered 
the  pre-existing  law  on  this  subject ;  and  they  have  extended  the  title  by 
descent  generally  to  all  the  real  estate  owned  by  the  ancestor  at  his  death  ; 
and  they  include  in  the  descent,  every  interest,  legal  and  equitable,  in 
lands,  tenements,  and  hereditaments,  either  seised  or  possessed  by  the  in- 
testate, or  to  which  he  was  in  any  manner  entitled,  with  the  exception 
of  leases  for  years,  and  estates  for  the  life  of  another  person.  This  com- 
pletely abolishes  the  English  maxim,  that  seisina  faeit.  stipitem.  So,  like- 
wise, in  Massachusetts,  Rhode  Island,  Connecticut,  New  Jersey,  Penn- 
sylvania, Delaware,  Virginia,  South  Carolina,  Georgia,  and  Ohio,  and 
probably  in  other  states,  the  real  and  personal  estates  are  distributed 
among  the  heirs,  without  any  reference  or  regard  to  the  actual  seisin  of 
the  ancestor.  Reversions  and  remainders  vested  by  descent  in  an  intes- 
tate, pass  to  his  heirs  in  like  manner  as  if  he  had  been  seised  in  pos- 
session ;  and  no  distinction  is  admitted  in  descents  between  estates  in 
possession,  and  in  reversion.  In  the  states  of  Vermont,  New  Hampshire, 
Maryland,  and  North  Carolina,  the  doctrine  of  the  possessio  fratris  would 
seem  still  to  exist. 

9.  In  case  of  posthumous  descendants,  to  whom  does  the  inheritance 
in  the  meantime  descend,  at  the  death  of  the  intestate  ?  — 389 

To  the  heir  in  esse.  It  was  declared,  by  Lord  Ch.  J.  De  Grey,  in  the 
case  of  Goodtitle  v.  Newman,  on  the  authority  of  a  case  in  the  Year 
Books,  of  9  Hen.  VI.  25.  that  the  posthumous  heir  was  not  entitled  to  the 
profits  of  the  estate  before  his  birth,  because  the  entry  of  the  presump- 
tive heir  was  lawful.  This  rule  does  not  apply  to  posthumous  children 
who  take  remainders,  under  the  statute  of  10  and  11  Wm.  III.  They 
must  take  the  intermediate  profits,  says  Lord  Hardwicke  ;  for  they  are 
to  take  in  the  same  manner  as  if  born  in  the  lifetime  of  the  father.  This 


LEG.  LXV.]       REDUCED  TO  QUESTIONS  AND  ANSWERS.  219 

construction  of  Lord  Hardwicke  applies  to  the  New  York  revised  statutes  ; 
for  it  is  declared,  that  posthumous  descendants  shall,  in  all  cases,  inherit 
in  the  same  manner  as  if  born  in  the  lifetime  of  the  intestate. 

10.  What  is  the  second  rule  of  descents?  —  390 

That,  if  a  person  dying  seised,  or  as  owner  of  land,  leaves  lawful 
issue  of  different  degrees  of  consanguinity,  the  inheritance  shall  descend 
to  the  children  and  grandchildren  of  the  ancestor,  if  any  be  living,  and  to 
the  issue  of  such  children  or  grandchildren  as  shall  be  dead,  and  so  on 
to  the  remotest  degree,  as  tenants  in  common.  But  such  grandchildren, 
and  their  descendants,  shall  inherit  only  such  share  as  their  parents  re- 
spectively would  have  inherited  if  living. 

11.  What  is  the  third  canon  of  inheritance  ? — 393 

That  if  the  owner  of  lands  dies  without  lawful  descendants,  leaving 
parents,  the  inheritance  shall  ascend  to  them,  either  first  to  the  father  and 
next  to  the  mother,  or  jointly,  under  certain  qualifications. 

12.  What  is  the  fourth  rule  of  inheritance  ?— 400 

That,  if  the  intestate  dies  without  issue,  or  parents,  the  estate  goes  to 
his  brothers  and  sisters,  and  their  representatives.  If  there  be  several 
such  relatives,  and  all  of  equal  degree  of  consanguinity  to  the  intestate, 
the  inheritance  descends  to  them  in  equal  parts,  however  remote  from  the 
intestate  the  common  degree  of  consanguinity  may  be.  If  they  all  be 
brothers  and  sisters,  or  nephews  and  nieces,  they  inherit  equally ;  but  if 
some  be  dead  leaving  issue,  and  others  living,  then  those  who  are  living 
take  the  share  they  would  have  taken  if  all  had  been  living,  and  the  de- 
scendants of  those  who  are  dead  inherit  only  the  share  which  their  parents 
would  have  received  if  living. 

13.  What  is  the  fifth?— 407 

That  in  default  of  lineal  descendants,  and  parents,  and  brothers  and 
sisters,  and  their  descendants,  the  inheritance  ascends  to  the  grandparents 
of  the  intestate,  or  to  the  survivor  of  them.  This  is  not  the  rule  that  has 
recently  been  declared  in  New  York,  for  that  excludes,  in  all  cases,  the 
grandparents  from  the  succession,  and  the  direct  lineal  ascending  line  stops 
with  the  father. 

14.  What  is  the  sixth  ? — 408 

That,  in  default  of  lineal  descendants,  and  parents,  and  brothers  and 
sisters,  and  their  descendants,  and  grandparents,  the  inheritance  goes  to  the 
brothers  and  sisters,  equally,  of  both  the  parents  of  the  intestate,  and  to 
their  descendants.  If  all  stand  in  equal  degree  of  consanguinity  to 
the  intestate,  they  take  per  capita ;  and  if  in  unequal  degree,  they  take  per 
stirpes. 

This  is_^the  rule  declared  in  New  York,  with  the  exception  of  the 


120  KENT'S  COMMENTARIES,  [VOL.  iv. 

grandparents  ;  and  I  presume  it  may  be  considered,  with  some  slight  vari- 
ations in  particular  instances,  as  a  general  rule  throughout  the  United 
States.  It  is  confined,  in  New  York,  to  cases  in  which  the  inheritance 
had  not  come  to  the  intestate  on  the  part  of  either  of  his  parents.  The 
rule  is  controlled  in  that,  and  in  some  other  states,  by  the  following  rule. 

15.  What  is  the  seventh  ? — 409 

That,  if  the  inheritance  came  to  the  intestate  on  the  part  of  his  father, 
then  the  brothers  and  sisters  of  the  father,  and  their  descendants,  shall  have 
preference,  and,  in  default  of  them,  the  estate  shall  descend  to  the  brothers 
and  sisters  of  the  mother,  and  their  descendants.  But  if  the  inheritance 
came  to  the  intestate  on  the  part  of  his  mother,  then  her  brothers  and 
sisters,  and  their  descendants,  have  the  preference  ;  and,  in  default  of  them, 
the  brothers  and  sisters  on  the  father's  side,  and  their  descendants,  take. 
This  rule  is  so  declared  in  the  New  York  revised  statutes  ;  and  the  adop- 
tion of  the  same  distinction  in  several  of  the  states,  and  the  omission  of 
it  in  others,  has  been  already  sufficiently  shown,  in  discussing  the  merits 
of  the  fourth  rule  of  inheritance. 

16.  What  is  the  eighth  rule  ?— 409 

That  on  failure  of  heirs,  under  the  preceding  rules,  the  inheritance 
descends  to  the  remaining  next  of  kin  to  the  intestate,  according  to  the 
rules  in  the  English  statute  of  distribution  of  the  personal  estate,  subject 
to  the  doctrine  in  the  preceding  rules  in  the  different  states,  as  to  the  half 
blood,  and  as  to  the  ancestral  estates,  and  as  to  the  equality  of  distribution. 


LECTURE    LXVI. 

OF  TITLE  BY  ESCHEAT,  BY  FORFEITURE,  AND  BY 
EXECUTION. 

1.  Under  what  heads  is  title  to  land  usually  distributed  ? — 423 

Under  the  heads  of  descent  and  purchase,  the  one  title  being  acquired 
by  operation  of  law,  and  the  other  by  the  act  or  agreement  of  the  party. 
But  titles  by  escheat  and  forfeiture  are  also  acquired  by  the  mere  act  of 
the  law  ;  and  Mr.  Hargrave  thinks  that  the  proper  general  division  of  title 
to  estates,  would  have  been  by  purchase,  and  by  act  of  law,  the  latter 
including  equally,  descent,  escheat,  and  forfeiture. 

2.  What  additional  title,  unknown  to  the  English  common  law,  is  added 
by  American  authors  ? — 423 

Title  by  execution. 

3.  How  was  title  by  escheat  created  in  the  English  law  ? — 423 


LEG.  LXVI.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  221 

It  was  one  of  the  fruits  and  consequences  of  feudal  tenure.  When 
the  blood  of  the  last  person  seised  became  extinct,  and  the  title  of  the  ten- 
ant in  fee  failed,  from  want  of  heirs,  or  by  some  other  means,  the  land  re- 
sulted back,  or  reverted  to  the  original  grantor,  or  lord  of  the  fee,  from  whom 
it  proceeded,  or  to  his  descendants  or  successors.  All  escheats,  under  the 
English  law,  are  declared  to  be  strictly  feudal,  and  to  import  the  extinction 
of  tenure.  The  opinions  given  in  the  great  case  of  Burgess  v.  Wheate, 
concur  in  this  view  of  the  doctrine  of  escheat.  But,  as  the  feudal  tenures 
do  not  exist  in  this  country,  there  are  no  private  persons  who  succeed  to 
the  inheritance  by  escheat ;  and  the  state  steps  in  the  place  of  the  feudal 
lord,  by  virtue  of  its  sovereignty,  as  the  original  and  ultimate  proprietor  of 
all  the  lands  within  its  jurisdiction. 

4.  Is  not  the  forfeiture,  at  common  law,  of  the  estate  for  crimes,  very 
much  reduced  in  this  country  ? — 426 

Yes,  and  the  corruption  of  blood  is  universally  abolished.  In  New 
York,  forfeiture  of  property  for  crimes,  is  confined  to  the  case  of  a  convic- 
tion for  treason  ;  and,  by  a  law  of  the  colony  of  Massachusetts,  as  early 
as  1641,  escheats  and  forfeitures,  upon  the  death  of  the  ancestor,  "  natural, 
unnatural,  casual,  or  judicial,"  were  abolished  for  ever. 

5.  What  is  the  rule  of  law,  as  to  the  title  which  the  state  takes  by  es- 
cheat or  forfeiture  ? — 427 

It  takes  the  title  which  the  party  had,  and  none  other.  It  is  taken  in 
the  plight  and  extent  by  which  he  held  it ;  and  the  estate  of  a  remainder- 
man is  not  destroyed  or  divested  by  the  forfeiture  of  the  particular  estate. 

6.  Was  title  by  execution  known  to  the  common  law  ? — 428-31 

It  was  not,  but  owes  its  introduction  to  modern  statutes.  The  mode 
which  the  creditor  is  required  to  pursue,  varies  in  different  states. 

It  is  now  provided  by  the  New  York  revised  statutes,  that  the  real 
estate  of  the  debtor  may  be  sold  on  execution,  either  at  law  or  in  chancery, 
in  default  of  goods  and  chattels,  on  six  weeks'  notice,  and  in  separate  par- 
cels, if  required  by  the  owner.  A  certificate  of  the  sale  is  to  be  delivered 
by  the  officer  to  the  purchaser,  and  another  certificate  filed  in  the  clerk's 
office  of  the  county  within  ten  days. 

7.  Is  a  sale  so  made,  conditional  or  absolute  ? — 431 

Conditional ;  redemption  of  the  lands  sold  may  be  made  by  the  debtor, 
or  his  representative,  within  one  year,  on  paying  the  amount  of  the  bid, 
with  ten  per  cent,  interest.  Any  joint  tenant,  or  tenant  in  common,  may 
redeem  his  ratable  share  of  the  land  by  paying  a  due  proportion  of  the 
purchase  money.  On  default  of  the  debtor,  any  creditor,  by  judgment  at 
law,  or  decree  in  equity,  and  in  his  own  right,  or  as  a  trustee,  within  three 
months  after  the  expiration  of  the  year,  may  redeem  the  land,  on  paying 
the  purchase  money,  with  seven  per  cent,  interest.  So,  any  other  judg- 
ment creditor  may  redeem  from  such  prior  creditor.  The  redemption  is 
allowed  to  be  carried  further,  and  is  given  to  any  other  creditor,  who  may 


222  KENT'S  COMMENTARIES,  [VOL.  iv. 

redeem  from  the  creditor  standing  prior  to  him.  But  all  these  subsequent 
redemptions  must  be  within  fifteen  months  from  the  time  of  the  sale  ;  for 
the  officer  is  then  to  execute  a  deed  to  the  person  entitled,  and  the  title 
so  acquired  becomes  absolute  in  law. 


LECTURE    LXVII. 
OF  TITLE  BY  DEED. 

1.  What  is  a  purchase,  in  the  ordinary  and  popular  acceptation  of  the 
term?— 440 

It  is  the  transmission  of  property  from  one  person  to  another,  by  their 
voluntary  act  and  agreement,  founded  on  a  valuable  consideration. 

2.  What  is  it  in  judgment  of  law  ?  — 440 

It  is  the  acquisition  of  land  by  any  lawful  act  of  the  party,  in  contra- 
distinction to  acquisition  by  operation  of  law  ;  and  it  includes  title  by  deed, 
title  by  matter  of  record,  and  title  by  devise. 

3.  Were  lands  alienable  in  the  time  of  the  Anglo-Saxons  1—441 

They  were,  either  by  deed  or  by  will,  agreeable  to  respectable  au- 
thorities. 

4.  How  were  they  called,  when  conveyed  by  charter  or  deed  ?— 441 

Boc,  or  bookland,  and  the  other  kind  of  land,  called  folcland,  was 
held  and  conveyed  without  writing.  But  this  notion  of  the  free  disposition 
of  the  land  among  the  Saxons,  must  be  understood  in  a  very  qualified 
sense  ;  and  the  jus  disponendi,  even  at  that  day,  was  subject,  as  it  is  and 
ought  to  be,  in  every  country,  and  in  every  stage  of  society,  to  the  restraints 
and  modifications  suggested  by  convenience,  and  dictated  by  civil  institu- 
tions. It  was  reserved,  however,  to  the  feudal  policy,  to  impose  restraints 
upon  the  enjoyment  and  circulation  of  landed  property,  to  an  extent  then 
unprecedented  in  the  annals  of  Europe. 

5.  In  whose  favour  did  these  restraints  arise  ? —  442 

They  arose  partly  in  favour  of  the  heir  of  the  tenant ;  but  principally 
from  favour  to  the  lord  of  the  fee.  It  was  repugnant  to  the  genius  of  the  feu- 
dal system,  to  allow  the  land,  which  the  chieftan  had  given  to  one  family, 
to  pass,  without  his  consent,  into  the  possession  of  another,  perhaps  to  an 
•enemy.  The  restrictions  accorded  with  the  doctrine  of  feuds  ;  but  were 
proper  for  that  system  only.  Asa  part  of  the  feudal  fabric,  they  fell  before 
the  influence  of  freedom,  commerce,  and  the  arts. 

6.  When  were  the  earliest  innovations  upon  the  feudal  restraints  made? 
—443 


LEC.   LXVII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  223 

In  the  reign  of  Henry  L,  the  first  step  taken  in  mitigation  of  the 
rigour  of  the  law  of  feuds,  and  in  favour  of  voluntary  alienations,  was  the 
countenance  given  to  the  practice  of  subinfeudations. 

7.  Did  not  a  law  of  Henry  I.  relax  the  restraints  as  to  the  purchased 
lands  ? — 444 

Yes,  but  retained  it  as  to  those  which  were  ancestral.  Under  the 
statute  de  donis  of  13  Edward  I.,  fees  conditional  were  changed  into  estates 
tail ;  and  by  construction  of  the  courts,  these  were  eluded,  and  the  policy 
of  the  statute  defeated  by  the  fiction  of  a  common  recovery.  The  statute 
of  quia  emptores,  18  Edward  I.,  permanently  established  the  free  right  of 
alienation  by  the  sub-vassel,  without  the  lord's  consent.  The  power  of 
involuntary  alienation,  by  rendering  the  land  answerable  by  attachment 
for  debt,  was  created  by  the  statute  of  13  Edward  I.,  c.  18,  which  granted 
the  elegit ;  and  by  the  statutes  merchant  or  staple,  of  13  Edward  I.,  and 
27  Edward  III.,  which  gave  the  extent. 

8.  Who  is  capable  of  holding  land  by  descent,  devise,  or  purchase  ? — 446 

Every  citizen  of  the  United  States  ;  and  every  person  capable  of 
holding  lands,  except  idiots,  persons  of  unsound  minds,  and  infants,  and 
seised  of,  or  entitled  to,  any  estate,  or  interest  in  land,  may  alien  the  same 
at  his  pleasure,  under  the  regulations  prescribed  by  law. 

9.  Has  not  the  statute  of  32  Henry  VIII.,  respecting  pretended  titles, 
which  imposed  a  forfeiture  upon  the   seller  of  the   whole  value  of  lands 
sold,  and  the  same  penalty  upon  the  buyer,  also,  if  he  purchased,  know- 
ingly, been  re-enacted  in  the  state  of  New  York  ? — 447 

Yes.  This  severe  statute  was  re-enacted  literally  in  New  York,  in 
1788,  but  the  penalty  provisions  are  altered  by  the  New  York  revised 
statutes,  which  have  abolished  the  forfeiture,  and  made  it  a  misdemeanor 
for  any  person  to  buy  or  sell,  or  make  or  take  a  promise  or  covenant  to 
convey,  unless  the  grantor,  or  those  by  whom  he  claims,  shall  have  been 
in  possession  of  the  land,  or  of  the  reversion  or  remainder  thereof,  or  of 
the  rents  and  profits,  for  the  space  of  a  year  preceding. 

10.  Does  this  provision  apply  to  a  mortgage  of  the  lands  ? — 447 

No — nor  to  a  release  of  the  same  to  the  person  in  lawful  possession. 

11.  Was  not  a  feoffment  void,  without  livery  of  seisin  ? — 448 

Yes  ;  and  without  possession  a  man  could  not  make  livery  of  seisin. 

12.  Is  this  principle  peculiar  to  the  common  law  ? — 448 

No.  It  was  a  fundamental  doctrine  of  the  law  of  feuds,  on  the  con- 
tinent of  Europe. 

13.  Is  it  not  the  settled  doctrine,  in  the  state  of  New   York,  that  the 
purchase  of  land  pending  a  suit  concerning  it,  is  champerty  ? — 449 


224  KENT'S  COMMENTARIES,  [VOL.  iv. 

Yes.  And  the  purchase  is  void,  if  made  with  a  knowledge  of  the 
suit,  and  not  in  consummation  of  a  previous  bargain. 

14.  What  is  required,  in  the  due  execution  of  a  deed? — 449 

It  must  be  written  on  paper  or  parchment  and  signed,  sealed,  deliv- 
ered and  recorded. 

15.  Does  not  the  law  require  more  form  and  solemnity,  in  the  convey- 
ance of  land,  than  in  that  of  chattels  ?  — 450 

It  does,  and  this  arises  frpm  the  greater  dignity  of  the  freehold  in  the 
eye  of  the  ancient  law,  and  from  the  light  and  transitory  nature  of  person- 
al property,  which  enters  much  more  deeply  into  commerce,  and  requires 
the  utmost  facility  in  its  incessant  circulation. 

16.  How  were  lands  conveyed  in  the  early  periods  of  English  history  ? 
—450 

Usually  without  writing,  but  it  was  accompanied,  with  overt  acts, 
equivalent,  in  point  of  formality  and  certainty,  to  deeds.  As  knowledge 
increased  conveyance  by  writing  became  more  prevalent ;  and  finally,  by 
the  statute  of  frauds  and  perjuries,  of  29  Charles  II.,  all  estates  and  in- 
terests inlands,  (except  leases  not  exceeding  three  years,)  created,  granted, 
or  assigned,  by  livery  and  seisin  only,  or  by  parol,  and  not  in  writing,  and 
signed  by  the  party,  were  declared  to  have  no  greater  force  or  effect  than 
estates  at  will  only. 

17.  How  has  the  statute  provision  been  received  in  the  United  States  ? 
— 450 

It  has  been  either,  expressly  adopted,  or  assumed  as  law,  throughout 
the  United  States.  In  New  York,  it  has  been  enacted,  in  every  succes- 
sive revision  of  the  statutes  ;  and  in  the  last  revision  it  is  made  to  apply, 
not  only  to  every  estate  and  interest  in  lands,  but  to  every  power,  or  trust, 
concerning  the  same  ;  and  the  exception  as  to  leases  is  confined  to  leases 
for  a  term  not  exceeding  on  year. 

18.  Does  this  provision,  apply  to  trusts  by  implication,  or  operation  of 
law  ?— 450 

No,  nor  is  a  parol  promise  to  pay  for  the  improvements  made  upon 
land  within  the  statute  of  frauds.  They  are  not  an  interest  in  land,  but 
only  another  name  for  work  and  labour"  bestowed  upon  it.  So  a  crop  of 
growing  potatoes,  has  been  held  not  to  be  such  a  contract  for  the  sale  of  any 
interest  in  land,  as  to  require  a  writing,  within  the  statute  of  frauds. 

19.  How  must  a  conveyance  be  executed  in  England  ?— 451 

It  is  deemed  essential  in  the  English  law  to  a  conveyance  of  land, 
that  it  should  be  by  writing,  sealed  and  delivered ;  this  rule  of  the 
common  law  is  adopted  and  followed,  with  us  with  the  exception  of  Lou- 
isiana, and  is  in  some  states  made  a  statute  provision.  Part  performance 


e  performance  of  the  contract  *  C°U"  °f  "J"^'  to  *«•• 

20.  What  is  a  deed  ?  _  453 


2L  What  did  the  common  law  intend  by  a  seal  > 


_453 

substance 


urfn  ?!l4T2iing  "  the  C0m™"  '-  -».,  requisite  in  every  state  in  the 


.™dw'  o»  » 

mclus've,  *e  impressions  upor^  "^X",  *?*  Ste,rn  sta'fs-  f™'"New  Jersey 

^  to  lnduM  the  couns  ,0  allow  aflouri  h  wi*  *  '°  S"Ch  ""  extent' 

name,  or  a  c.cle  of  lnk,  or 


23.  Is  delivery  of  a  deed  essential  ?_454 
['  is,  for  it  takes  effect  only  from  the  delivery. 

To  whom  may  the  deed  be  delivered  ?_454 
any  *«I~Sfi  "hom  «  is  made,  or  „ 


25^  May  i,  be  deHvered  to  a  stranger  as  an  m  ;_454 

by  him  3  :etinmce:nndi?iorti0p:lforemVdry  "A'"'  ^ 

over  to  the  grantee.  performed,  and  then  to  be  delivered 


'  "he"  *e  <*««  «  delivered  as 

and  the  deed 


27.  When  generally  does  an  e«roB  take  e(rec(  ,_4M 

&  M™r.  «d  is  to  be  considered  a,  the 

r  so  t  rnction""Vf  nef'  ™le.drS  "M 

delivery,  so  as  to  .ive  the  deed  ,ff.     r        V      rela"0n  back   to  the 
of  n  °m  "'at  tlm     is 


e    ee    ,.      r 

of  necessity,  to  avoid  in  iurv^  ,h  °m  "'at  tlme'  is   allo»e'i  i"  cases 

Pining  bet^en        3  *" 


226  KENT'S  COMMENTARIES,  [VOL.  iv. 

28.  What  is  the  general  principle  of  law  on  this  subject  ? — 454 

That  in  all  cases  where  it  becomes  necessary,  for  the  purposes  of 
justice,  that  the  true  time  when  any  legal  proceeding  took  place  should  be 
ascertained,  the  fiction  of  law  introduced  for  the  sake  of  justice,  is  not  to 
prevail  against  the  fact.  It  has  been  further  held,  that  if  the  grantor  de- 
liver a  deed  as  his  deed,  to  a  third  person,  to  be  delivered  over  to  the 
grantee  on  some  future  event,  as  on  the  arrival  of  the  grantee  at  York, 
it  is  a  valid  deed  from  the  beginning,  and  the  third  person  is  but  a  trustee 
of  it  for  the  grantee. 

29.  May  the  delivery  to  the  third  person,  for  and  on  behalf  of  the  grantee, 
amount  to  a  valid  delivery  ?— 455 

Yes  ;  thus  where  A  delivered  a  deed  to  B,to  deliver  to  C  as  his  deed, 
and  B  did  so,  and  though  C  refused  to  accept  of  it,  the  deed  was  held  to 
enure  from  the  first  delivery. 

30.  What  reason  does  the  law  assign  for  this  ? — 455 

It  is  this  :  because  the  deed  was  not  delivered  as  an  escrow,  or  upon* 
a  condition  to  be  performed.  So,  if  a  deed  be  duly  delivered  in  the  first 
instance,  it  will  operate,  though  the  grantee  suffer  it  to  remain  in  the  cus- 
tody of  the  grantor. 

31.  What  is  required  to  make  a  deed  valid  against  bona  fide  purcha- 
sers ?— 456 

By  the  statute  law  of  every  state  in  the  union,  all  deeds  and  convey- 
ances of  land,  except  certain  chattel  interests,  are  required  to  be  recorded, 
upon  previous  acknowledgment  of  proof. 

32.  Against  whom  only,  will  a  deed  be  good,  if  not  recorded  ? — 456 
Only— as  against  the  grantor  and  his  heirs. 

33.  Upon  what  does  the  mode  and  effect  of  proof  depend  ?— 457 
Upon  the  local  laws  of  the  several  states. 

34.  Does  not  the  New  York  revised  statutes  contain  specific  directions 
on  the  subject  of  the  proof  ?— 458 

They  do,  and  also  of  the  manner  of  recording  conveyances  of  real 
estate. 

35.  Do  the  New  York  revised  statutes  make  any  provision  as  to  the 
number  of  witnesses  requisite  to  a  deed  ?— 458 

None  whatever  ;  and  consequently,  the  common  law  rule  applies,  that 
one  witness  is  sufficient,  or  the  acknowledgment  before  the  officer  with- 
out any  witness. 


LEG.  LXVII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  227 

36.  Is  the  practice  of  recording  deeds  in  England,  limited  or  general  ? 
—  459 

It  is  of  local  and  very  limited  application.  It  applies  to  the  Bedford 
level  tract,  to  the  ridings  of  Yorkshire,  and  to  the  county  of  Middlesex. 

37.  Was  there  not  during  the  period  of  the  English  commonwealth,  an 
effort  to  establish   county  registers,  for  recording  deeds  throughout  Eng- 
land ?— 459 

There  was. 

38.  Was  not  the  ancient  policy  in  favour  of  the  entire  publicity  of  trans- 
fers of  land,  by  the  fine  of  record,  the  livery  under  the  feoffment,  the  en- 
rolment of  a  bargain  and  sale,  and  the  attornment  under  the  grant  ? — 459 

Yes.  But  the  ingenuity  of  conveyancers,  and  the  general  and  natural 
dispositions  to  withdraw  settlements,  and  the  domestic  arrangements,  from 
the  idle  curiosity  of  the  public,  have  defeated  that  policy. 

39.  How  is  it  now  in  Scotland  ? — 459 

The  old  feudal  forms,  and  the  sasine,  or  symbolical  tradition  of  the 
land  are  retained. 

40.  Of  what  does  a  deed  consist  ? — 460 

It  consists  of  the  names  of  the  parties,  the  consideration  for  which 
the  land  was  sold,  the  description  of  the  subject  granted,  the  quantity  of 
interest  conveyed,  and,  lastly,  the  conditions,  reservations,  and  covenants, 
if  any  there  be. 

41.  What  said  Sir  Henry  Spelman,  of  the  deeds  of  the  Saxons  ?— 460 

He  says,  that  they  "  observed  no  set  form,  but  used  honest  and  per- 
spicuous words  to  express  the  thing  intended  with  all  brevity,  yet  not 
wanting  the  essential  parts  of  a  deed,  as  the  names  of  the  donor  and 
donee,  the  consideration,  the  certainty  of  the  thing  given,  the  limitation  of 
the  estate,  the  reservation,  and  the  names  of  the  witnesses."  This  brev- 
ity and  perspicuity,  so  much  commended  by  Spelman,  has  become  quite 
lost,  or  but  dimly  perceived,  in  the  cumbersome  forms  and  precedents  of 
the  English  system  of  conveyancing. 

42.  Does  not  the  forms  in  New  York,  and  in  those  parts  of  the  United 
States  which  adhere  the  most  to  the  English  practice,  still  retain  the  lan- 
guage of  a  mutual  contract,  executed  by  both  parties  ?  — 460 

Yes.  And  each  of  them  is  supposed,  by  the  fiction  implied  in  the 
more  formal  parts  of  the  indenture,  to  retain  a  copy.  But  the  essential 
parts  of  a  conveyance  of  land  in  fee  are  brief,  and  require  but  few  words. 
If  a  deed  of  feoffment,  according  to  Lord  Coke,  be  without  premises,  ha- 
bendum,  tenendum,  reddendum,  clause  of  warranty,  &c.,  it  is  still  a  good 


228  KENT'S  COMMENTARIES,  [VOL.  ir. 

deed,  if  it  gives  lands  to  another,  and  to  his  heirs,  without  saying  more, 
provided  it  be  sealed  and  delivered,  and  be  accompanied  with  livery. 

43.  What  is  the  usual  form  of  conveyance  in  the  United  States  ?— 461 
It  is  usually  by  bargain  and  sale,  and  possession  passes  ex  vifacti. 

44.  What  requisites  are  required  ? — 462 

The  parties  must  be  competent  to  contract,  and  truly  and  sufficiently 
described. 

45.  How  has  a  grant  to  the  people  of  a  county  been  held  ? — 462 

To  be  void ;  because  the  statute  enabling  supervisors  of  counties  to 
take  conveyances  of  land,  applied  only  to  conveyances  made  to  them  by 
their  official  name. 

46.  Is  a  grant  to  the  inhabitants  of  a  town  not  incoporated,  valid  ? — 462 
It  is  not. 

47.  Are  not  conveyances  good  in  many  cases,  when  made  to  a  grantee 
by  a  certain   designation,  without  the  mention  of  either  the  christain  or 
surname  ? — 462 

Yes.  As  to  the  wife  of  I.  S.,  or  to  his  eldest  son,  for  id  est  certum, 
quod  potest  reddi  certum. 

48.  Is  a  consideration  essential  to  a  good  and  absolute  deed  ? — 462 

It  is  generally  so  held  ;  but  a  gift,  or  voluntary  conveyance  will  be 
effectual  as  between  the  parties,  and  is  only  liable  to  be  questioned  in 
certain  cases,  when  the  rights  of  creditors  and  subsequent  purchasers  are 
concerned. 

49.  Must  the  consideration  be  either  good  or  valuable  ? — 464 

Yes.  And  not  partaking  of  any  thing  immoral  or  illegal,  or  fraud- 
ulent. 

50.  Is  it  not  a  universal  rule,  that  it  is  unlawful  to  contract  to  do  that 
which  it  is  unlawful  to  do  ? — 464 

Yes.  And  every  deed  and  every  contract  are  equally  void,  whether 
they  be  made  in  violation  of  a  law  which  is  malum  in  se',  or  only  malum 
prohibitum. 

51.  What  is  a  good  consideration  founded  upon  ? — 464 

Upon  natural  love  and  affection  between  near  relations  by  blood  ; 
but  a  valuable  one  is  founded  on  something  deemed  valuable,  as  money, 
goods,  services,  or  marriage. 


LEC.   LXVII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  229 

52.  What  is  the  rule  respecting  the  description  of  the  land  convey- 
ed ?— 466 

The  rule  is,  that  known  and  fixed  monuments  control  courses  and 
distances.  So,  the  certainty  of  metes  and  bounds  will  include,  and  pass 
all  the  lands  within  them,  though  they  vary  from  the  given  quantity  ex- 
pressed in  the  deed.  The  least  certain  arid  material  parts  of  the  descrip- 
tion must  yield  to  those  which  are  the  most  certain  and  material. 

53.  Does  the  mention  of  quantity  of  acres,  after  a  certain  description  of 
"the  subject  by  metes  and  bounds,  or  by  other  known  specification,  amount 

to  any  covenant  ?  — 466 

It  does  not :  it  is  but  matter  of  description — nor  does  it  afford  ground 
for  the  breach  of  any  of  the  usual  covenants,  though  the  quantity  of  acres 
should  fall  short  of  the  given  amount. 

54.  Whenever  it  appears  by  the  definite  boundaries,  or  by  words  of  quali- 
fication, as  "  more  or  less,"  or  as  "  containing  by  estimation,"  or  the  like, 
that  the  statement  of  the  quantity  of  acres  in  the  deed  is  mere  matter  of 
description,  and  not  of  the  essence  of  the  contract,  how  does  the  buyer 
take  it? -467 

He  takes  it  at  the  risk  of  the  quantity,  if  there  be  no  intermixture  of 
fraud  in  the  case. 

55.  How  was  the  hale.ndum  originally  used?  —  468 

To  determine  the  interest  granted,  or  to  lessen,  enlarge,  explain,  or 
qualify  the  premises.  It.  is  now  generally  considered  but  a  mere  form. 
If,  however,  the  premises  should  be  merely  descriptive,  and  no  estate  be 
mentioned,  then  the  habendum  becomes  efficient  to  declare  the  inten- 
tion ;  and  it  will  rebut  any  implication  arising  from  the  silence  of  the 
premises. 

56.  What  five  covenants  are  usually  inserted  in  a  conveyance  of  the 
fee?— 471 

1.  That  the  grantor  is  lawfully  seised.  ^  * 

2.  That  he  has  good  right  to  convey. 

3.  That  the  land  is  free  from  incumbrances. 

4.  That  the  grantee  shall  quietly  enjoy. 

5.  That  the  grantor  will  warrant  and  defend  the  title  against  all  law- 
ful claims. 

57.  Which  three  are  personal  covenants  ? — 471 

The  first  three  of  the  five  above  named.  Those  three  do  not  run 
with  the  land,  nor  pass  to  the  assignee. 

58.  Are  the  covenant  of  warranty,  and  the  covenant  for  quiet  enjoy- 
ment, in  the  nature  of  real  covenants  ? — 471 


230  KENT'S  COMMENTARIES,  [VOL.  iv. 

Yes  :  and  they  run  with  the  land  conveyed,  and  descend  to  heirs,  and 
vest  in  assignees. 

59.  Are  not  damages  allowed  on  eviction,  for  improvements,  made  by 
the  purchaser  ? — 475 

None  whatever. 

60.  If  an  incumberance  has  not  been  extinguished  by  the  purchaser, 
and  there  has  been  no  eviction  under  it,  what  damages  can  he  recover  ? 
—476 

Nominal  damages  only,  if  the  eviction  be  only  of  a  part  of  the  land 
purchased,  the  damages  are  a  ratable  part  of  the  original  price  ;  and  they 
are  to  bear  the  same  ratio  to  the  whole  consideration,  that  the  value 
of  the  land,  to  which  the  title  has  failed,  bears  to  the  value  of  the  whole 
tract. 

61.  Does  the  French  code  adopt  the  same  rule  of  compensation  on 
eviction  of  part  only  of  the  subject  1 — 477 

Yes  ;  but  it  allows  the  whole  sale  to  be  vacated,  if  the  eviction  be 
of  such  consequence,  relatively  to  the  whole  purchase,  that  the  purchase 
would  not  have  been  made  without  the  part  lost. 

62.  Does  not  this  have  the  appearance  of  refined  justice  ? — 477 

It  does  ;  but  the  prosecution  of  such  an  inquiry  must,  in  many  cases, 
be  very  difficult  and  delusive  ;  and  this  part  of  the  provision,  allowing  the 
contract  to  be  rescinded,  has  been  dropped  in  Louisiana. 

63.  What  did  the  French  law  give  prior  to  the  revolution  ?— 478 

It  gave  to  the  buyer  a  compensation  for  improvements,  and  the  in- 
creased value  of  the  land,  in  addition  to  the  restitution  of  the  price,  with 
interest  and  costs.  It  was  founded  on  the  Roman  law  ;  but  the  provision 
was  destitute  of  fixedness  and  precision. 

64.  What  effect  did  the  code  Napoleon  have  upon  this  rule  ? — 478 

It  rescued  the  rule  from  the  guidance  of  loose  and  arbitrary  discre- 
tion, and  reduced  it  to  certainty. 

65.  What  does  that  code  allow  the  purchaser  on  eviction  ? — 478 

To  recover  the  price,  and  the  mesne  profits  which  he  is  obliged  to 
pay  to  the  owner,  and  his  costs  and  expenses,  and  the  increased  value  of 
the  lands,  independent  of  the  acts  of  the  purchaser,  and  also  the  benefi- 
cial improvements  which  he  may  have  made. 

66.  Does  the  rule  in  the  French  code  operate  with  equality  and  jus- 
tice 1 — 478 


LEG.  LXVII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  231 

It  does  not ;  the  vendor  is  bound  to  pay  for  the  increased  value  of 
the  land;  and  yet  if  it  happens  to  be  diminished  in  value  at  the  time  of 
eviction,  the  vendor  is  not  less  bound  to  refund  the  purchase  money. 

67.  What  has  the  civil  code  of  Louisiana  provided  on  this  subject  ? — 
478 

Closely  copied  the  general  provisions  of  the  French  code  ;  but  it  has 
omitted  this  inequality  of  regulation  ;  and  it  likewise  confines  the  recovery 
to  the  price,  mesne  profits,  costs  and  special  damages,  (if  any,)  and  bene- 
ficial improvements. 

68.  On  what  does  the  manner  of  assigning  breaches,  on  these  various 
covenants  depend  ? — 479 

Upon  the  character  of  the  covenant. 

69.  How  many  kinds  of  conveyances  are  there  ? — 480 

There  are  two  kinds  ;  first,  conveyances  at  common  law  ;  second, 
conveyances  under  the  statute  of  uses. 

70.  How  is  the  first  class  subdivided  ?— 480 
Into  original  and  derivative  conveyances. 

71.  What  was  a  feoffment  ?— 480 

It  was  the  mode  of  conveyance  in  the  earliest  periods  of  the  com- 
mon law. 

72.  With  what  was  the  feoffment  accompanied  ? — 480 

With  actual  delivery  of  possession  of  the  land,  termed  livery  of 


73.  How  was  livery  of  seisin  performed  ? — 480 

It  was  performed  by  the  entry  of  the  feoffor  upon  the  land,  with  the 
charter  of  feoffment,  and  delivering  a  clod,  turf,  or  twig,  or  the  latch  of 
the  door,  in  the  name  of  seisin  of  all  the  lands  contained  in  the  deed. 

74.  What  was  the  ceremony  of  granting  a  feud  ? — 480 

Open  and  notorious  delivery  of  possession  in  the  presence  of  the 
freeholders  of  the  neighbourhood. 

75.  Did  the  feoffment  operate  upon  the  possession  ? — 481 

Yes  ;  without  any  regard  to  the  estate  or  interest  of  the  feoffor. 

76.  Has  not  the  conveyance  by   feoffment,  with  livery  of  seisin,  long 
since  been  obsolete  in  England? — 489 


232  KENT'S  COMMENTARIES,  [VOL.  iv, 

Yes  ;  and  though  it  has  been,  in  this  country,  a  lawful  mode  of  con- 
veyance, it  has  not  been  used  in  practice.  Our  conveyances  have  been 
either  under  the  statute  of  uses,  or  short  deeds  of  conveyance,  in  the  na- 
ture of  the  ancient  feoffment,  and  made  effectual,  on  being  duly  recorded, 
without  the  ceremony  of  livery.  The  New  York  revised  statutes  have 
expressly  abolished  the  mode  of  conveying  lands  by  feoffment,  with  livery 
of  seisin. 

77.  What  was  a  grant  7—490 

It  was  a  common  law  conveyance,  and  applied  to  incorporeal  here- 
ditaments, such  as  reversion,  rents,  and  services  ;  and,  not  being  of  a  tan- 
gible nature,  and  existing  only  in  contemplation  of  law,  they  could  not  be 
conveyed  by  livery  of  seisin.  Such  rights  were  said  to  lie  in  grant,  and 
not  in  livery,  and  they  were  conveyed  simply  by  deed. 

78.  What  was  the  difference  between  a  feoffment  and  a  grant? — 490 

There  was  this  essential  difference  between  a  feoffment  and  a  gl'ant: 
while  the  former  carried  destruction  in  its  course,  by  operating  upon  the 
possession,  without  any  regard  to  the  estate  or  interest  of  the  feoffor,  the 
latter  benignly  operated  only  upon  the  estate  or  interest  which  the  grantor 
had  in  the  thing  granted,  and  could  lawfully  convey. 

79.  What  did  the  common  law  require,  to  render  the  grant  effectual  ?  — 
490 

It  required  the  consent  of  the  tenant  of  the  land  out  of  which  the 
rent,  or  other  incorporeal  interest,  proceeded  ;  and  this  consent  was  called 
attornment ;  but  this  is  now  abolished  in  the  United  States. 

80.  Have  not  the  New  York  revised  statutes  rendered  the  attornment 
of  the  tenant  unnecessary  to   the  validity  of  a  conveyance  by  his   land- 
lord?—491 

Yes.  But  to  renderi  him  responsible  to  the  grantee,  for  rent  or  other- 
wise, he  must  have  notice  of  the  grant.  Nor  will  the  attornment  of  a  tenant 
to  a  stranger  be  valid,  unless  made  with  his  landlord's  consent,  or  in  con- 
sequence of  a  judgment  or  decree,  or  to  a  mortgagee,  after  forfeiture  of  the 
mortgage. 

81.  Have  not  the  New  York'  revised  statutes  given  to  deeds  of  convey- 
ance of  the  inheritance  or  freehold,  the  name  of  grants  ? — 491 

Yes.  And  though  deeds  of  bargain  and  sale,  and  of  lease  or  release, 
may  continue  to  be  used,  they  are  to  be  deemed  grants. 

82.  What  is  the  nature  and  effectof  a  covenant,  tostand  seised  touses?--492 

By  this  conveyance,  a  person  seised  of  lands,  covenants  that  he  will 
stand  seised  of  them  to  the  use  of  another.  On  executing  the  covenant, 
the  other  party  becomes  seised  of  the  use  of  the  land,  according  to  the 
terms  of  the  use  ;  and  the  statute  of  uses  immediately  operates,  and  annexes 
he  possession  to  the  use. 


LEC.  LXVIII.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  233 

83.  Can  any  use  be  raised  for  any  purpose  by  this  conveyance,  in  favour 
of  a  person  not  within  the  influence  of  the  domestic  consideration  ? — 493 

No.  And  it  makes  no  difference  whether  the  grantee,  if  he  be  a 
stranger,  to  the  consideration,  is  to  take  on  his  own  account,  or  as  a 
mere  trustee  for  some  of  the  family  connexions.  He  is  equally  incompe- 
tent to  take. 

84.  If  the  covenant  to  stand  seised,  be  founded  on  the  requisite  consid- 
eration, would  not  then  the  grant  be  good  ? — 493 

Yes.  And  it  is  admitted,  that  in  a  covenant  to  stand  seised  any 
words  will  do,  that  sufficiently  indicate  the  intention. 

85.  What  is  the  usual  mode  of  conveyance  in  England  ? — 494 

That  of  lease  and  release,— because  it  does  not  require  the  trouble 
of  enrolment.  It  was  contrived  by  Sergeant  Moore,  at  the  request  of  Lord 
Norris,  for  a  particular  case,  and  to  avoid  the  unpleasant  notoriety  of  livery, 
or  attornment.  It  was  the  mode  universally  in  practice  in  New  York, 
until  the  year  1788. 

86.  What  mode  of  conveyance  is  most  prevalent  in  the  United  States  ? 
—497. 

That  of  bargain  and  sale  ;  and  it  was  in  universal  use  in  New  York, 
prior  to  the  introduction  of  the  grant,  by  the  revised  statutes,  in  January, 
1830. 


LECTURE    LXVIII. 
OF  TITLE  BY  WILL  OR  DEVISE. 

1.  What  is  a  will?— 501 

A  will  is  a  disposition  of  real  and  personal  property,  to  take  effect  after 
the  death  of  the  testator.  When  the  will  operates  upon  personal  property, 
it  is  sometimes  called  a  testament ;  and  when  upon  real  estate  a  devise  ; 
but  the  more  general,  and  the  more  popular  denomination  of  the  instrument, 
embracing  equally  real  and  personal  estates,  is  that  of  last  will  and 
testament. 

2.  Were  lands  devisible  to  a  qualified  extent,  with  the  Anglo-Saxons  ?—503 

It  seems  so.  But,  upon  the  establishment  of  the  feudal  system,  at  the 
Norman  conquest,  lands  held  in  tenure  ceased  to  be  devisible. 

3.  What  exceptions  were  there  to  this  restraint  1 — 504 

Burgage  tenures,  and  lands  in  gavelkind. 
30 


234  KENT'S  COMMENTARIES,  [VOL.  IT- 

0 

4.  When  did  the  disposition  of  real  property  by  will,  become  absolute  ? 
—504 

In  the  beginning  of  the  reign  of  Charles  II. 

5.  Was  not  the  English  law  of  devise,  imported  into  this  country  by 
our  ancestors  ? — 504 

Yes.  And  incorporated  into  our  colonial  jurisprudence,  under  such 
modifications,  in  some  instances,  as  were  deemed  expedient.  Lands  may 
be  devised  by  will,  in  all  the  United  States. 

6.  What  is  the  general  rule,  as  to  the  parties  to  a  devise  ? — 505 

That  all  persons  of  sound  mind  are  competent  to  devise  real  estate, 
with  the  exception  of  infants  and  married  women  ;  a.  feme  covert,  may 
devise,  by  way  of  the  execution  of  a  power  ;  but  the  will  that  she  makes, 
in  such  a  case,  must  be  executed  with  the  same  solemnities  as  if  she  had 
executed  the  will  while  sole  ;  and  the  statute  of  New  York  excludes  the 
exercise  of  such  power,  during  infancy. 

7.  May  testaments  of  chattels  be  made  by  infants  ? — 506 

They  may  in  conformity  with  the  English  rule,  females  at  the  age  of 
12,  males  at  the  age  of  14. 

8.  Are  the  laws  in  the  several  states  uniform  on  this  point  ?—  506 

They  are  not,  and  by  the  New  York  revised  statutes,  the  age  to 
make  a  will  of  personal  estate  is  raised  up  to  18  in  males,  and  16  in  fe- 
males ;  nor  can  a  married  woman  make  a  testament  of  chattels,  any  more 
than  of  lands,  except  under  a  power  or  marriage  contract. 

9.  May  infants,  femes  covert,   and  persons  of  nonsane  memory,  and 
aliens  be  devisees  ?— 506 

Yes,  for  the  devise  is  without  consideration  ;  a  devise  to  the  heir  at 
law  is  void,  if  it  gives  precisely  the  same  estate  that  the  heir  would  take 
by  descent,  if  the  particular  devise  to  him  was  omitted  out  of  the  will. 

10.  Which,  in  this  case,  has  the  precedence,  title  by  descent,  or  by  de- 
vise ? — 506 

Title  by  descent. 

11.  If  the  lands  be  devised  to  the  heir  charged  with  debts,  by  what  will 
he  take,  and  why  ?— 507 

By  descent,  for  the  charge  does  not  operate  as  an  alteration  of  the 
.estate. 

12.  Are  not  corporations  excepted  out  of  the  English  statute  of  wills  ? 
-507 

Yes,  corporations  are  excepted  out  of  the  English  statute  of  wills,  and 


LEC.  LXVI1I.]  REDUCED  TO  QUESTIONS  AND  ANSWERS.  235 

the  object  of  the  law  was  to  prevent  property  from  being  locked  up  in 
perpetuity,  and  also  to  prevent,  languishing  and  dying  persons,  from  being 
imposed  upon  by  false  notions  of  merit  or  duty,  to  give  away  their  estates 
from  their  families. 

13.  What  says  the  New  York  revised  statutes  on  this  subject  1  —  507 

That  no  devise  to  a  corporation  shall  be  valid,  unless  the  corporation 
be  expressly  authorized  to  take  by  devise. 

14    Are  witnesses  to  a  will,  rendered  incapable  of  taking  any  beneficial 
interest  under  it  I — 509 

Yes,  except  they  be  creditors,  whose  debts,  by  the  will,  are  made  a 
charge  on  the  real  estate. 

15.  What  is  the  settled  rule  of  the  English  law,  respecting  things  de- 
visible  ? — 510 

That  the  testator  must  be  seized  of  the  lands  devised  at  the  time  of 
making  the  will.  The  devise  is  in  the  nature  of  a  conveyance,  or  an  ap- 
pointment of  a  particular  estate  ;  and  therefore  lands,  purchased  after  the 
execution  of  the  will,  do  not  pass  by  it :  the  testator  must  likewise  con- 
tinue seized  at  the  time  of  his  death. 

16.  Have  not  the  New  York  revised  statutes  made  devises  prospective  ? 
—512 

Yes,  by  declaring  that  every  estate,  and  interest  descendible  to  heirs, 
may  be  devised  ;  and  that  every  will  made  in  express  terms,  of  all  the  real 
estate,  or  in  any  other  terms  denoting  the  testator's  intent  to  devise  all  his 
real  property,  shall  be  construed  to  pass  all  the  real  estate  which  he  was 
entitled  to  devise  at  the  time  of  his  death.  The  law  in  Pennsylvania  and 
Virginia  is  the  same  as  that  now  in  New  York.  Rights  of  entry  which 
are  devisible  even  though  there  be  an  adverse  possession  or  disseisin. 

17.  Has  a  joint  tenant  an  interest  which  is  devisible  ?— 513 

He  has  not ;  the  reason  given  by  Lord  Coke  is,  that  the  surviving 
joint  tenant  has  an  interest,  which  first  attaches  at  the  death  of  the  joint 
tenant  making  the  will ;  and  he  insists,  that  there  is  a  priority  of  time  in  an 
instant ;  and  Mr.  Butler  refers  to  another  case  in  which  that  subtlety  was 
applied. 

18.  What  in  general  are  the  formalities  required  in  the  execution  of  a 
will  of  real  estate  ?— 513 

The  general  provision  on  this  subject  is,  that  the  will  of  real  estate 
must  be  in  writing,  and  subscribed  by  the  testator,  or  acknowledged  by 
him  in  the  presence  of  at  least  two  witnesses,  who  are  to  subscribe  their 
names  as  witnesses.  The  regulations  in  the  several  states  differ  in 
some  unessential  points  ;  but  generally  they  have  adopted  the  directions 
given  by  the  English  statute  of  frauds,  of  29  Charles  II  By  the  New 
York  revised  statutes,  the  testator  is  to  subscribe  the  will  at  the  end  of 


236  KENT'S  COMMENTARIES,  [VOL.  iv. 

it,  in  the  presence  of  at  least  two  witnesses,  who  are  to  write  their  places 
of  residence  opposite  their  names,  under  the  penalty  of  fifty  dollars  ;  but  the 
omission  to  do  it  will  not  affect  the  validity  and  efficiency  of  their  attesta- 
tion. In  Vermont,  the  will  is  required  to  be  sealed  ;  but  this  is  peculiar  to 
that  state.  Three  witnesses,  as  in  the  statute  of  frauds,  are  required,  in 
Vermont,  New  Hampshire,  Maine,  Massachusetts,  Rhode  Island,  Con- 
necticut, New  Jersey,  Maryland,  South  Carolina,  Georgia,  Alabama,  and 
Mississippi.  Two  witnesses  only,  are  requisite,  in  New  York,  New  Jersey, 
Delaware,  Virginia,  Ohio,  Illinois,  Indiana,  Missouri,  Tennessee,  North 
Carolina,  and  Kentucky.  In  some  of  the  states,  the  provision  as  to  attes- 
tation is  more  special.  In  Pennsylvania,  a  devise  of  lands  in  writing  will 
be  good  without  any  subscribing  witnesses,  provided  the  authenticity  of  it 
can  be  proved  by  two  witnesses.  So  in  Virginia,  two  subscribing  witnesses 
do  not  seem  to  be  indispensable,  provided  the  will  has  been  wholly  written 
xout,  and  signed  by  the  testator.  In  North  Carolina  and  Tennessee,  a  will 
of  land  may  be  good,  under  special  circumstances,  without  any  subscribing 
witnesses. 

19.  Does  not  the  English  statute  of  frauds,  require  the  will  to  be  signed 
by  the  devisor,  and  to  be  attested  and  subscribed  by  the  witnesses,  in  his 
presence  ? — 514 

Yes  ;  and  this  direction  has  been  extensively  followed  in  the  statute 
laws  of  this  country. 

20.  To  what  extent  have  the  revised  statutes  altered  the  former  law  of 
New  York  ? — 515 

So  far,  as  to  require  the  signature  of  the  testator,  and  of  the  witnesses, 
to  be  at  the  end  of  the  will ;  and  the  testator,  when  he  signs  or  acknow- 
ledges the  will,  is  to  declare  the  instrument  to  be  his  last  will ;  and  he  is  to 
subscribe  or  acknowledge  the  will,  in  the  presence  of  each  witness  ;  and 
the  witnesses  are  to,  subscribe  their  names  at  the  request  of  the  testator. 

21.  Have  not  the  English  court,  from  a  disposition  to  favour  wills,  de- 
parted from  the  strict  construction  and  obvious  meaning  of  the  statute  of 
frauds  ? — 515 

They  have,  and  thereby  opened  a  door  to  very  extensive  litigation.  It 
was  held  to  be  sufficient,  that  the  testator  wrote  his  name  at  the  top  of  the 
will,  by  way  of  recital ;  and  his  name,  so  insertedj  was  deemed  signing  the 
will  within  the  purview  of  the  statute. 

22.  Has  not  the  doctrine  of  a  constructive  presence  of  the  testator  been 
carried  very  far  1  —  515 

Yes  :  and  it  has  been  decided  that  if  the  witnesses  were  within  view, 
and  where  the  testator  might,  or  had  the  capacity  to  see  them,  with  some 
little  effort,  if  he  had  the  desire,  though  in  reality  he  did  not,  they  were  to 
be  deemed  subscribing  witnesses  in  his  presence. 

23.  Has  it  not  been  further  held,  that  if  the  testator  produced  to  the 


LEC.  LXVIII.]  REDUCED  TO  QUESTIONS    AND  ANSWERS.  237 

witnesses  a  will  already  signed  and  acknowledged  the  signature  in  their 
presence,  it  was  a  sufficient  compliance  with  the  statute  ? — 515 

Yes. 

24.  Is  it  held  necessary  that  the  witnesses  should  attest  in  the  presence 
of  each  other  ?—  516 

It  is  not,  nor  is  it  necessary  they  should  attest  every  page  or  sheet, 
or  that  they  should  know  the  contents. 

25.  Must  the  subscribing  witnesses  all  attest  at  one  time  ? — 516 
It  is  not  particularly  requisite. 

26.  Was  a  will  of  chattels  good  without  writing  at  common  law  ?— 516 

It  appears  it  was,  in  ignorant  ages,  there  was  no  other  way  of  making 
a  will  but  by  words  or  signs.  But,  by  the  time  of  Henry  VIII.,  and  es- 
pecially in  the  ages  of  Elizabeth  and  James,  letters  had  become  so  gen- 
erally cultivated,  and  reading  and  writing  so  widely  diffused,  that  verbal 
unwritten,  or  nuncupative  wills,  were  confined  to  extreme  cases,  and  held 
to  be  justified  only  upon  the  plea  of  necessity. 

27.  What  has  the  New  York  revised  statutes  declared,  respecting  nun- 
cupative or  unwritten  wills  ? — 517 

They  have  declared,  that  no  nuncupative  or  unwritten  will,  shall  not 
be  valid,  unless  made  by  a  soldier  while  in  actual  military  service,  or  by 
a  marine  while  at  sea. 

28.  What  is  required  in  the  English  ecclesiastical  courts,  respecting  a 
nuncupative  will  ? — 513 

That  it  be  proved  by  evidence  more  strict  and  stringent,  than  that 
applicable  to  a  written  will,  even  in  addition  to  all  the  requisites  prescribed 
by  the  statute  of  frauds. 

29.  How  are  the  laws  of  Louisiana  in  respect  to  last  wills  ? — 519 

Wills,  under  the  code  of  that  state,  are  of  three  kinds  ;  nuncupative 
or  open,  mystic  or  sealed,  and  olographic.  They  are  all  to  be  in  writing. 
The  first,  or  nuncupative  testament,  is  to  be  made  by  a  public  act  before 
a  notary,  in  the  presence  of  three,  or  five  witnesses,  according  to  circum- 
stances ;  and  to  be  signed  by  the  testator  and  witnesses  ;  or  it  may  be 
executed  by  his  private  signature,  in  the  presence  of  three,  or  five,  or 
seven  witnesses,  according  to  circumstances,  and  they  are  to  subscribe  it. 
The  second,  or  mystic  testament,  is  to  be  signed  by  the  testator,  and  sealed 
up,  and  presented  to  a  notary  and  seven  witnesses,  with  a  declaration  that 
it  is  his  will  ;  and  the  notary  and  witnesses  are  to  subscribe  the  super- 
scription. The  third,  or  olographic  testament,  is  one  entirely  written,  and 
signed  by  the  testator,  and  subject  to  no  other  form,  and  may  be  made  out 
of  the  state. 


238  KENT'S  COMMENTARIES,  [VOL.  iv. 

30.  Is  not  a  will,  duly  made  according  to  law,  in  its  nature  ambulatory 
during  the  testator's  life,  and  revocable  at  his  pleasure  ?— 520 

Yes.  But  to  prevent  the  admission  of  loose  and  uncertain  testimony, 
countervailing  the  operation  of  an  instrument  made  with  the  formalities 
prescribed,  it  is  provided  that  the  revocation  must  be  by  another  instrument 
executed  in  the  same  manner  ;  or  else  by  burning,  cancelling,  tearing,  or 
obliterating  the  same,  by  the  testator  himself,  or  in  his  presence,  and  by 
his  directions. 

31.  May  not  a  will  be  revoked  by  implication,  or  inference  of  law  ? 
—521 

Yes.  And  these  revocations  are  not  within  the  purview  of  the  stat- 
ute ;  and  they  have  given  rise  to  some  of  the  most  difficult  and  interesting 
discussions  existing  on  the  subject  of  wills.  They  are  founded  upon  the 
reasonable  presumption  of  an  alteration  of  the  testator's  mind,  arising  from 
circumstances  since  the  making  of  the  will,  producing  a  change  in  his 
previous  obligations  and  duties.  The  case  stated  by  Cicero,  is  often  al- 
luded to,  in  which  the  father,  on  the  report  of  the  death  of  his  son,  who 
was  then  abroad,  altered  his  testament,  and  appointed  another  person  to 
be  his  heir.  The  son  returned  after  the  father's  death,  and  the  centum- 
viri  restored  the  inheritance  to  him.  There  is  a  case  mentioned  in  the 
Pandects  to  the  same  effect ;  and  it  was  the  general  doctrine  of  the  Ro- 
man law,  that  the  subsequent  birth  of  a  child,  unnoticed  in  the  will,  an- 
nulled it.  This  is  the  rule  in  those  countries  which  have  generally  adopted 
the  civil  law,  Testamenta  rumpiuntur  agnations  posthumi ;  and  there  is  not 
perhaps,  any  code  of  civilized  jurisprudence,  in  which  this  doctrine  of 
implied  revocation  does  not  exist,  and  apply  when  the  occurrence  of  new 
social  relations  and  moral  duties  raises  a  necessary  presumption  of  a 
change  of  intention  in  the  testator. 

32.  In  what  court  was  the  first  case  that  recognized  in  England,  the 
rule,  that  the  subsequent  birth  of  a  child  was  a  revocation  of  a  will  of 
personal  property  ? — 522 

It  was  decided  by  the  court  of  delegates  upon  appeal,  in  the  reign 
of  Charles  II. ;  and  it  was  grounded  upon  the  law  of  the  civilians. 

33.  Can  a  testator  devise  all  his  estate  to  strangers,  and  disinherit  his 
children  1 — 525 

There  is  no  doubt  of  it.  This  is  the  English  law,  and  the  law  in  all 
the  states,  with  the  exception  of  Louisiana.  Children  are  deemed  to  hare 
sufficient  security  in  the  affection  of  parents,  that  this  unlimited  power  of 
disposition  will  not  be  abused.  If,  however,  the  testator  has  not  given  the 
estate  to  a  competent  devisee,  the  heir  may  take  it,  notwithstanding  the 
testator  may  have  clearly  declared  his  intention  to  disinherit  him. 

34.  If  the  will  disposes  of  the  whole  estate,  and  the  testator  afterwards 
marries,  and  has  issue  born  in  his  lifetime,  or  after  his  death,  and  the  wife 


LEC.  LXVIII.]  REDUCED  TO  QOEST10NS  AND  ANSWERS.  239 

or  issue  be  living  at  his  death,  is  the  will  deemed  revoked  by  the  New 
York  revised  statutes  ?— 527 

Yes  ;  unless  the  issue  be  provided  for  by  the  will,  or  by  a  settlement, 
or  unless  the  will  shows  an  intention  not  to  make  any  provision. 

35.  Is  the  will  of  a  feme  sole  revoked  by  her  marriage  ?— 527 

It  is  ;  and  this  is  an  old  and  settled  rule  of  law ;  and  the  reason 
of  it  is,  that  the  marriage  destroys  the  ambulatory  nature  of  the  will,  and 
leaves  it  no  longer  subject  to  the  wife's  control. 

36.  Is  a  will  deemed  to  be  revoked  by  a  second  will  ? — 528 

Yes  ;  provided  it  contains  words  of  revocation,  or  makes  a  different 
disposition  of  the  property. 

37.  Will  a  sale  of  the  estate  devised,  operate  as  a  revocation  ?  —  528 

It  will ;  for  the  testator  must  die  while  owner  of  the  land,  or  the  will 
cannot  have  effect  upon  it. 

38.  Will  a  valid  agreement,  or  covenant  to  convey  lands,  which  equity 
will  specifically  enforce,  also  operate  in  equity  as  a  revocation  of  a  pre- 
vious devise  of  the  same  ? — 528 

It  will.  It  is  as  much  a  revocation  of  the  will  in  equity,  as  a  legal 
conveyance  of  the  land  would  be  at  law  ;  for  the  estate,  from  the  time  of 
the  contract,  is  considered  as  the  real  estate  of  the  vendee. 

39.  What  is  a  codicil?  — 531 

A  codicil  is  an  addition,  or  supplement  to  a  will,  and  must  be  executed 
with  the  same  solemnity. 

40.  What  says  the  New  York  revised  statutes,  respecting  the  destruc- 
tion or  revocation  of  a  second  will,  reviving  the  first  ? — 532 

They  have  dispensed  with  all  refinements  on  this  point.  In  no  case 
does  the  destruction  or  revocation  of  a  second  will,  revive  the  first,  unless 
the  intention  to  revive  it  be  declared.  Those  statutes  have  essentially 
changed  the  law  on  the  subject  of  these  constructive  revocations,  and  res- 
cued it  from  the  hard  operation  of  those  technical  rules,  of  which  we 
have  complained,  and  placed  it  on  juster,  and  more  rational  grounds. 

41.  What  is  the  first  and  great  object  of  enquiry  in  the  construction  of 
a  will?— 533 

The  intention  of  the  testator  ;  and  to  this  object,  technical  rules  are, 
to  a  certain  extent,  made  subservient. 

42.  Is  the  word  heirs  requisite  to  convey  a  fee  ?— 535 

It  is  not ;  but  the  other  words   denoting  an  intention  to  pass  the 


• 


240         KENT'S  COMMENTARIES,  REDUCED  TO  QUEST.  AND  ANS.     [VOL.  iv. 

whole  interest  of  the  testator  as  a  devise  of  all  my  estate,  all  my  interest, 
all  my  property,  my  whole  remainder,  all  I  am  worth  or  own,  all  my 
right,  and  my  title,  or,  all  I  shall  die  possessed  of,  and  many  other  ex- 
pressions of  the  like  import,  will  carry  an  inheritance,  if  there  be  nothing 
in  the  other  parts  of  the  will  to  limit  or  control  the  operation  of  the 
words. 


END    OF    VOLUME    FOUR. 


INDEX. 


The  first  figures  refer  to  the  question,  the  last  to  the  page. 


Accession 

2,  95 

Bills 

Adultery 

acceptance 

6,  129 

divorce  for 

3,  73 

conditional  acceptance 

8,  130 

punishment  for 

,  4,  ib. 

acceptor 

9,  ib. 

Agent 

supra  protest 

10,  ib. 

how  created 

2,  108 

endorsement 

11,  131 

as  to  real  estate 

4,  109 

in  blank 

14,  ib. 

assumed  agent 

6,  ib. 

after  due 

15,  ib. 

duty  of 

8,  ib. 

note  on  demand 

16,  ib. 

when  he  exceeds  his  authority 

9,  110 

demand 

17,  132 

right  to  sell  on  credit 

13,  111 

notice  of  non  acceptance 

18,  ib. 

to  allow  set  off 

14,  ib. 

demand  of  payment 

19,  ib. 

del  credere 

16,  112 

addition  to  bills 

20,  ib 

cannot  pledge 

17,  ib. 

days  of  grace 

22,  133 

right  to  deliver  goods 

19,  113 

requisites  to  fix  drawer 

23,  ib, 

liability  of 

20,  ib. 

reasonable  notice 

24,  ib. 

right  of  owner  to  collect 

22,  114 

notice  not  required 

26,  134 

public  and  private 

23,  ib. 

discharge  of  drawer 

27,  ib. 

no  right  to  employ  sub-agent 

24,  ib. 

damages 

32,  134 

right  to  lien 

26,  115 

bill  of  lading 

6,  146 

how  cease 

29,  ib. 

endorsement  of 

8,  ib. 

Alien 

5,  67 

Blockade 

6,  131 

right  to  hold  estate 

6,  68 

Bottomry 

1,  163 

how  become  a  citizen 

10,  ib. 

enemy 

1,  22 

Cartel  ships 

14,  21 

Allegiance 

2,  67 

Carriers 

8,  108 

Allies 

9,  36 

Caveat  emptor 

12,  102 

Ambassadors 

11,  17 

Chattel 

2,  94 

American  union 

2,  39 

real 

4,  ib. 

Apprentices 

7,  89 

in  remainder 

9,  ib. 

Attorneys 

sale  of 

12,  102 

how  execute  powers 

21,  114 

devise  of 

26,  237 

Auctioneers, 

22  104 

Charter  party 

1,  145 

Average 

duty  of  owner 

3,  ib. 

general 

2,  150 

demurrage 

4,  ib 

special 

73,  162 

duty  of  master 

9,  146 

deviation 

10,  147 

Bailment 

1,  106 

capture  of  ship 

11,  ib. 

species  of 

2,  107 

delivery  of  goods 

12,  ib. 

rules  relating  to  bailees 

7,  ib. 

perils  of  the  sea 

14,  ib. 

Bankruptcy 

4,  98 

duties  of  shipper 

15,  ib 

Bills 

dead  freight 

17,  148 

of  credit 

2,  54 

prohibition  to  land 

19,  ib. 

of  exchange 

1,  128 

general  average 

24,  150 

parties  to 

2,  ib. 

salvage 

29,  151 

requisites  to 

4,  ib. 

Checks 

*•    3,  128 

rights  of  holder 

5,  129 

Child 

3,  83 

31 

242 


INDEX. 


Circuit  Court 

9,  47 

Deed 

jurisdiction  of 

10,  ib. 

recording  of 

32,  226 

Coach  proprietors 

10,  108 

form  of 

40,  227 

Contraband  of  war 

2,  30 

consideration  of 

49,  228 

insurance  of 

12,  102 

description  in 

52,  229 

Common  recovery 

39,  130 

habendum 

55,  ib. 

Contracts 

warranty 

58,  ib. 

with  an  enemy 

13,  21 

of  feoffment 

71,  231 

laws  impairing 

6,  55 

of  grant 

77,  232 

of  marriage 

5,  70 

of  bargain  and  sale 

86,  233 

between  husband  and  wife 

1,  75 

Demurrage 

4,  145 

executory 

1,  100 

Descent 

1,  217 

how  divided 

2,  ib. 

Devise 

1,  205 

executed 

3,  ib. 

District  court 

12,  47 

qualifications  of  parties 

4,  ib. 

admiralty  jurisdiction  of 

1,51 

lunacy 

5,  ib. 

Divorce 

intoxication 

6,  ib. 

provisions  in  New  York 

1,  72 

imbecility  of  mind 

7,  101 

how  affect  children 

5,  73 

made  abroad 

8,  ib. 

foreign, 

7,  74 

consideration  of 

9,  102 

as  to  dower 

50,  189 

of  sale 

11,  102 

Domicil 

memorandum  of 

17,  103 

commercial 

2,  22 

interpretation  of 

25,  106 

in  Asia  and  Africa 

4  ib. 

of  partnership 

12,  122 

of  intestates 

8,  99 

of  affreightment 

1,  145 

Dower 

26,  186 

dissolution  of 

31,  151 

requisites  to 

29,  187 

of  insurance 

1,  ib. 

leaches  of  husband 

39,  188 

of  bottomry, 

1,  163 

how  defeated 

45,  189 

respondentia 

3,  ib. 

how  barred 

59,  191 

Congress 

1,  39 

privileges  of 

10,  40 

power  to  regulate  commerce 

8,  57 

Embargo 

8,  20 

Consideration 

10,  102 

Emblements 

67,  192 

Coparceners 

16,  216 

Enemy 

Corporations 

1,  89 

contract  with 

13,  21 

object  of 

2,  ib. 

alien 

1,  22 

antiquity  of 

4,  90 

collonial  trade  of 

7,  23 

capacities  of 

5,  ib. 

pass  of,  sailing  under 

8,  ib. 

of  learning 

7,  91 

property  of,  in  neutral  ships 

8,  29 

political  and  commercial 

8,  91 

captor's  right  to  freight 

10,  ib. 

now  divided 

9,  ib. 

carrying  despatches 

12,  33 

sole 

10,  ib. 

right  of  search 

13,  ib. 

aggregate 

11,  ib. 

Escheat 

3,  220 

religious 

13,  92 

Escrowe 

27,  225 

civil 

16,  ib. 

Estates 

1,  175 

public 

17,  ib. 

in  fee  simple 

7,  176 

powers  of 

18,  ib. 

word  heirs 

17,  177 

quasi 

19,  ib. 

qualified  fees 

19,  178 

Courts 

conditional 

27,  179 

supreme  of  U.  S. 

2,  46 

statute  de  donix 

33,  ib. 

circuit 

9,  47 

tail 

35,  ib. 

district 

12,  ib. 

common  recovery 

39,  180 

territorial 

13,  48 

for  life 

1,  183 

Curtesy 

12,  185 

freehold 

2,  ib. 

requisites  to 

15.  ib. 

how  created 

6,  184 

to  what  apply 

25,  186 

per  auter  vie 

7,  ib. 

by  the  curtesy 

12,  185 

Deed 

4,  222 

in  dower 

26,  186 

how  executed 

14,  224 

in  jointure 

53,  189 

in  England 

19,  ib. 

for  years 

2,  194 

sealing  of 

22,  225 

at  will 

6,  ib. 

delivery  of 

23,  ib. 

at  sufferance 

7,  195 

243 


Estates 

Hereditaments 

upon  condition 

1,  195 

servitudes 

8,  170 

in  deed 

4,  ib. 

running  waters 

9,  ib. 

in  mortgage 

1,  196 

easements 

10,  ib. 

in  remainder 

1,  210 

annuities 

12,  ib. 

by  devise 

1,  205 

rents 

13,  171 

in  trust 

1,  208 

Husband  and  wife 

In  reversion 

1,  213 

contracts  between 

1,75 

iu  joint  tenancy 

2,  214 

rights  of  husband 

2,  ib. 

in  coparcenary 

16,  216 

as  to  life  estate  of  the  wife 

4,  76 

by  escheat 

3,  2-20 

as  to  chattels  real 

7,  ib. 

by  forfeiture 

4,  221 

as  to  choses  in  action 

10,  77 

by  execution. 

6,  ib. 

wife's  debts  dum  sola, 

13,  ib. 

by  deed 

1,  222 

joinder  in  action 

15,  ib. 

by  will  or  devise 

1,  233 

assignment  in  bankruptcy 

16,  ib. 

Executory  devise 

1,  205 

wife's  right  to  provision  in 

history  of 

4,  ib. 

equity 

17,  78 

as  to  real  estate 

7,  206 

settlement  on  the  wife 

19,  ib. 

to  commence  in  future 

10,  ib. 

personal  property  of  wife 

20,  ib. 

liability  of  husband  for  wife's 

Fealty 

2,  172 

contracts 

22,  79 

Fee 

elopement  of  wife 

23,  ib. 

simple 

7,  176 

torts  and  frauds  of  wife 

24,  80 

qualified 

19,  178 

when  wife  may  contract 

25,  ib. 

conditional 

-27,  179 

how  wife  may  hold  property 

26,  80 

tail 

35,  ib. 

when  sue  her  husband 

27,  81 

Feoff  rnent 

71,  231 

wiles  covenant  to  warranty 

28,  ib. 

Feudal  System 

1,  172 

antenuptial  agreements 

29,  ib. 

Forfeiture 

1,  220 

authority  of  husband 

29,  82 

in  the  United  States 

4,  221 

rule  as  to  being  witness 

3.  ib, 

Freehold 

2,  183 

Freight 

16,  147 

Indians 

7,  43 

dead  freight 

17,  148 

Infant 

1,  86 

lien  for  freight 

18,  ib. 

acts  of  binding 

2,  ib. 

general  average 

24,  150 

defendant  in  equity 

6,  87 

salvage 

29,  151 

Inheritance 

4,  217 

insurance  of 

19,  154 

Insurance 

abandonment  of  ship 

72,  162 

Marine  insurance 

1,  14 

who  may  be  insured 

2,  152 

who  may  insure 

3,  ib. 

Gifts 

1,  99 

ship  specified 

4,  ib. 

how  affect  creditors 

2,  ib. 

whomsoever  it  may  concern 

7,  ib. 

revocation  of 

3,  ib. 

by  agent 

9,  ib. 

Goods 

assignment  of  subject  matter 

13,  153 

confusion  of 

4,  95 

of  contraband 

16,  ib. 

delivery  of 

18,  103 

of  neutral  goods 

17,  ib. 

symbolical  delivery 

20,  104 

seaman's  wages 

18,  154 

Grant 

77,  232 

of  freight 

19,  ib. 

Guaranty 

34,  134 

commencement  of  sink 

20,  ib. 

Guardian 

1,  83 

of  profits 

21,  ib. 

in  socage 

7,  84 

open  policy 

22,  ib. 

chancery 

11,  ib. 

valued  policy 

23,  ib. 

how  appointed 

13,  85 

wager  policy 

27,  155 

responsibility  of 

14,  ib. 

sufficient  interest 

28,  ib. 

ad  litem 

6,  87 

re-assurance 

29,  ib. 

double  insurance 

30,  ib. 

Habeas  corpus 

15,  66 

representation. 

34,  156 

Heir 

4,  217 

seaworthy 

36,  ib. 

posthumous 

9,  218 

warranty 

38,  ib. 

Hereditaments 

survey 

39,  157 

corporeal 

1,  168 

risks  insured 

41,  ib. 

•incorporeal 

2,  169 

illicit  trade 

43,  ib- 

244 


INDEX. 


Marine  Insurance 

memorandum  articles  44,  ib. 

loss  by  worms  46,  ib. 

missing  vessel  47,  158 

cause  of  loss  48,  ib. 

pirates,  rovers  and  thieves  51,  ib. 

arrests  and  restraints  52,  ib. 

against  fire  54,  145 

barratry  55,   ib. 

at  and  from  56,  ib. 

deviation  59,  ib. 

letters  of  marque  62,  160 

total  loss  63,  ib. 

abandonment  64,  ib. 

french  ordinance  as  to  aban- 
donment 67,  161 

shipwreck  68,  ib. 

damage  goods,  rule  in  case  of     70,  ib. 

quamum  of  injury,  rule  as  to  71,  162 

freight    on    abandonment    of 

ship  72,  ib. 

partial  loss  73,  ib. 

return  of  premium  74,  163 

Insurance  upon  lives  1,  166 

against  fire  3,  ib. 

settlement  of  loss  8,  167 

Issue,  lailure  of  13,  207 

Innkeeper  5,  107 

Intoxication  6,  100 

Joint  tenant  2,  214 

as  to  husband  and  wife  7,  ib. 

how  destroyed  9,  215 

alienation  by  10,  ib. 

Jointure  53,  189 

Judiciary  department  1,  45 

Judicial  construction  of  the  acts 

of  congress  1,  41 

on  the  bank  act  4,  42 

on  taxation  5,  ib. 

on  bills  of  credit  •     2,  54 

on  ex  post  facto  laws  3,  ib. 

on  the  obligation  of  contracts  6,  55 

Judicial  decisions  6,  61 

Judgment  foreign  8,  74 

property  acquired  by  4,  98 

Law 

of  nations  $.  2,  9 
of  what  composed  3,  ib. 
how  divided  6,  10 
antiquity  of  9,  ib. 
among  the  Greeks  and  Romans  10,  ib. 
how  in  the  middle  ages  13,  11 
how  improved  16,  12 
as  to  change  of  government  3,  16 
as  to  adjoining  seas  4,  ib. 
freedom  of  trade  6,  ib. 
as  to  passage  over  foreign  terri- 
tory 8,  ib. 
as  to  navigable  rivers  9,  17 
criminals  fleeing  from  justice  10,  ib. 
as  to  ambassadors  11,  ib. 


Law 

as  to  assistance  in  war  2,  19 

right  to  declare  war  5,  20 
capture  of  enemy's  properly         7,  ib. 

embargo  8,  ib. 

letters  of  marque  9,  21 

as  to  marriage  14,  72 
as  lo  the  right  to  confiscate 

debts  10,  ib. 
trading  with  enemy  12,  ib. 
contracts  with  enemy  13,  ib. 
cartel  ships  14,  ib. 
property  in  transitu  9,  23 
as  to  retaliation  2,  24 
as  to  prizes  8,  25 
as  to  neutrals  1,  27 
contraband  of  war  2,  30 
as  to  blockade  6,  33 
visitation  and  search  13,  33 
neutral  documents  15,  ib. 
as  to  a  truce  1,  34 
as  to  passports  4.  35 
enemy's  licence  to  trade  6,  ib. 
treaties  of  peace  7,  ib. 
as  to  public  domain  8,  ib. 
as  to  allies  9,  86 
as  to  pirates  3,  37 
ex  post  facto  laws  3,  54 
impairing  the  obligation  of  con- 
tracts 6,  55 
of  naturalization  5,  57 
municipal  1,  58 
sources  of  common  law  2,  61 
civil  by  whom  digested  1,  61 
maritime  1,  117 

Libel  10,  65 

how  considered  11,  ib. 

evidence  in  case  of  13,  66 

Lien 

of  United  States 
of  factors  and  agents 
how  created 

Lunatic 


Maritime  law 
antiquity  of 
Consolato  del  mari 
laws  of  Oleron 
Hanseatic  League 
of  Wisbuy 
French  ordinance 
English  marine  law 
of  the  United  Slates 

Maritime  Loans 
bottomry 
respondentia 
Jiability  of  lender  in 
maritime  interest 
as  to  seamen's  wages 
as  to  assignment  of 

Marriage 
consent  of  parties 
age  required 


2,  42 
26,  115 
27,  ib. 
5,  100 

1,  117 

2,  ib. 
5,  118 

5,  ib. 
7,  ib. 

6,  ib. 

9,  119 

10,  ib. 

11,  ib. 

2,  163 

3,  ib. 
10,  165 

14,  ib. 

15,  ib. 

16,  ib. 
1,  69 

5,  70 

6,  ib. 


INDEX. 


245 


Marriage 

pollygamy 

intermarriage  of  relations 

consent  of  parents 

form  of  contract 

settlement 
Master 

of  merchant  vessels,  see  servant 

grand  bill  of  sale 

mortgage  of 

charterer 

registry  of 

transfer  of 

coasting  trade 

part  owners  of 

employment  of 

persons  employed  in 

authority  of  master 

pilots 

provisions  of  congress 

extra  wages 

sickness  of  seamen 

death  of  seamen 

capture 

lien  of  seamen 

seaworthy 

loss  by  collision 
Militia 
Mortgage 

equity,  doctrine  of 

rights  of  mortgagor 

rights  of  mortgagee 

equity  of  redemption 

opening  biddings 

Nations 

law  of 

rights  of.  in  a  state  of  peace 

division  of  territory 

in  a  state  of  war 

obligation  of  contracts  upon 
Natives 
Next  of  kin 
Neutrals 

rights  and  duties  of 

rules  of  neutrality  established  by 
congress 

property  of,  on  armed  beligerent 
vessels 

rule  as  to  documents 
Nudem  paclum, 

Patent  rights 
Parents 

duties  of 

Part  owners  of  merchant  ships 
Partnership 

as  to  joint  possession 

joint  purchase 

unincorporated  companies 

incorporated  companies 

how  formed 


Partnership 

7,  70 

extent  of 

14,  122 

9,  ib. 

dormant  partners 

15,  ib. 

10,  71 

nominal 

16,  ib. 

13,  ib. 

limited 

18,  123 

53,  189 

interest  of  partners  in  their 

stock 

19,  123 

1,  136 

as  to  real  estate 

20,  123 

2,  137 

as  to  ship  owners 

21,  124 

4,  ib. 

partner  may  bind  the  firm 

22,  ib. 

5,  ib. 

as  to  pledging 

24,  125 

6.  138 

guaranty 

25,  ib. 

7,  ib. 

as  to  acts  by  deed 

26,  ib. 

8,  139 

dissolution  of 

27,  126 

9,  ib. 

death  of  partner 

29,  ib. 

10,  ib. 

insanity  of 

20,  ib. 

1,  140 

bankruptcy  of  partner 

31,  127 

2,  ib. 

consequences  of  dissolution 

32,  ib. 

4,  141 

notice  of  dissolution 

34,  ib. 

6,  ib. 

Passport 

4,  34 

11,  143 

Peace 

I,  15 

12,  ib. 

treaty  of 

7,  35 

14,  144 

Pilots 

4,  141 

15,  ib. 

Piracy 

3,  71 

17,  ib. 

Plunder 

1,  24 

5,  146 

Power 

1,  211 

22,  149 

how  classed 

5,  ib. 

9,  43 

special 

9,  212 

1,  196 

in  New  York 

13,  ib. 

15,  198 

President 

1.  44 

16,  ib. 

how  appointed 

-2',  ib. 

20,  99 

powers  of 

3,  45 

29,  200 

how  removed 

4,  ib. 

35,  ib. 

Privateers 

3,  24 

liability 

5,  25 

foreign  commissions 

6,  ib. 

3,  9 

commissions  from  different 

1,  15 

powers 

7,  ib. 

4,  16 

Prize 

1,  19 

law  of 

8,  25 

2,  ib. 

how  vested  in  the  captor 

9,  26 

1,  67 

in  neutral  ports 

7,  29 

7,  98 

courts  of 

2,  51 

Property 

1,27 

original  method  of  acquiring 

1,  93 

>y 

personal 

1,  ib. 

6,  28 

division  of 

3,  94 

t 

absolute 

6,  ib. 

11,  29 

qualified 

7,  ib. 

11,  33 

title  to  personal  property 

1,  95 

9,  102 

by  accession 

2,  ib. 

by  intellectual  labour 

5,  96 

6,  96 

distribution  of  personal 

7,  98 

1,  8-2 

real 

1,  175 

2,  ib. 

Public  domain 

9,  139 

power  to  alienate 

8,  35 

1,  120 

right  to 

6,  43 

5,  ib. 

Purchase 

1,  222 

6,  ib. 

11,  121 

Ransom  bill 

12,  26 

12,  ib. 

Records 

8,  43 

13,  122 

Rents 

13,  171 

246 


INDEX. 


Rents 

Tenant 

remedy  for 

20,  172 

for  life 

3,  183 

Religion 

16,  66 

per  auter  vie 

7,  184 

Remainder 

3,  201 

by  the  curtesy 

12,  185 

cross 

6,  202 

requisites 

29,  187 

vested 

8,  ib. 

in  dower 

26,  186 

contingent 

10,  ib. 

for  years 

2,  194 

particular  estate 

17,  204 

at  will 

6,  ib. 

Representatives,  house  of 

6,  40 

at  sufferance 

7,  195 

Reversion 

2,  213 

joint 

2,  214 

incidents  to 

8,  214 

in  common 

19,  216 

Rights 

Tenure 

of  persons 

1,  63 

feudal 

1,  172 

absolute 

2,  ib. 

Title 

relative 

3,  ib. 

to  personal  property 

1,  95 

enjoyment  of 

5,  ib. 

by  accession 

2,  ib. 

provisions  in  defence  of 

7,  64 

by  confusion 

4,  ib. 

patent 

6,  96 

by  intellectual  labour 

5,  96 

copy 

7,  ib. 

by  transfer  by  act  of  law 

1,  97 

of  stoppage  in  transitu 

24,  105 

by  forfeiture 

2,  ib. 

of  common 

4,  169 

by  judgment 

3,  ib. 

of  way 

5,  ib. 

by  bankruptcy 

4,  98 

riparian 

6,  ib. 

by  intestacy 

6,  ib. 

as  to  highways 

7,  170 

by  gift 

1,  99 

to  merchant  ships 

1,  136 

Safe  conducts 

2,  37 

foundation  of,  to  land 

1,  167 

Sale 

11,  102 

in  fee  simple 

7,  176 

when  absolute 

15,  103 

by  the  curtesy 

12,  185 

memorandum  of 

17,  ib. 

in  dower 

26,  186 

at  auction 

23,  105 

by  descent 

21,  217 

Senate  of  United  States 

1,  39 

Things  in  action 

8,  94 

Seal 

21,  225 

Treaty 

22,  13 

Seamen 

6,  141 

of  peace 

'  7,  35 

Servants 

1,  88 

Trusts 

14,  200 

Shipwreck 

68,  161 

Truse 

2,  34 

Slaves 

1,  88 

trade  in 

10,  38 

Use 

1,  208 

State  governments 

1,  52 

shifting 

7,  ib. 

restrictions  on 

1,  54 

springing 

8,  209 

tax  by 

6,  57 

contingent 

9,  ib. 

public  and  private 

12,  60 

objections  to 

12,  ib. 

Sstatute 

9,  59, 

., 

interpretation  of 

13,  ib. 

Waste 

70,  192 

temporary 

14,  ib. 

Will  or  devise 

1,  233 

of  frauds 

20,  104 

parties  to 

6,  234 

auction  sales,  as  regards  to 

23,  105 

as  to  corporations 

12,  ib. 

Stoppage 

in  New  York 

13,  235 

in  transitu 

24,  105 

by  joint  tenant 

17,  ib. 

Socage 

1,  173 

form  of  execution 

18,  ib. 

Supreme-  Court 

statute  of  frauds 

19,  286 

jurisdiction  of 

7,  46 

subscribing  witness 

24,  237 

as  to  common  law 

1,  49 

as  to  chattels 

26,  ib. 

where  an  alien  is  a  party 

3,  ib 

in  Louisiana 

29,  ib. 

where  a  corporation  is  a  party 

5,  50 

revocation  of 

31,  238 

as  to  trustees 

6,  ib. 

to  strangers 

33,  ib. 

where  a  state  is  a  party 

7,  ib. 

codicil 

39,  239 

GLOSSARY. 


Ab  initio, 

Ad  litem, 

Ad  locum  rei  sites, 

A  mensa.  el  thoro, 

Animo  furandi, 

Autre  fois  aquit, 

A'jua  currit-  et  debet  currere, 

A  vinculo  matrimonii, 
A  provisione  viri, 

Bonafide, 
Casusfaderis, 

Causa  metus, 
Causa  impotentia, 
Causa  mortis, 
Cestui  qui  trust, 
Champerty, 
Chose  in  action, 

Collegium  fabrorum, 
Commercia  belli, 
Consolato  del  mare, 
Coinitas  inter  communitatesf 
Commendam, 

Como  datum, 
Caveat  emptor, 

De  facto, 
Del  credere, 
De  bonis  non, 
Depositum, 

De  jure, 

Dominium  rectum, 
Dominium  utile, 
Dum  sola, 
Durante  mduitate, 

Ex  comitate, 

Ex  properia  vigore, 

Ex  post  facto, 

Ex  ceptio  rei  judicata? 

Ex  d-elicto, 

Ex  contractu, 


From  the  beginning. 

To  litigate. 

The  place  where  the  thing  is  situated 

From  board  and  bed. 

With  an  intention  of  stealing. 

Upon  another  time  acquitted. 

Water  runs  and  owes  to  run,  or  should 

be  suffered  to  run. 

From  the  band  or  obligation  of  marriage. 
From  provision  of  the  man. 

In  good  faith. 

Case  of  the  contract  or  within  the  con- 
tract. 

By  reason  of  fear. 

By  reason  of  weekness  or  inability. 

By  reason  of  death. 

One  for  whom  a  trust  is  created. 

Purchasing  suits  at  law. 

A  thing,  debt,  or  right  for  which  a  suit 
may  be  maintained. 

A  corporation  or  society  of  smiths. 

Intercourse  or  correspondence  of  war. 

Director  or  oracle  of  the  sea;  consulship. 

Curtesy  between  communities. 

Given  to  one  in  trust  and  for  his  advance- 
ment. 

A  loan  with  interest. 

Purchaser  beware. 

In  fact,  acting. 
Of  the  credit. 
Of  goods  not. 

Goods  placed  with  another  t<3  keep  -with- 
out reward. 
Of  right,  in  law. 
Authority  to  rule  or  govern. 
Right  or  power  to  use. 
While  single. 
During  widowhood. 

From  curtesy. 
From  its  own  force. 
After  the  act  done. 
Saving  of  the  thing  in  judgment. 
From  failure  in  duty. 
From  contract. 
32 


248 


GLOSSARY. 


Ex  vifacti, 
Ex  parte, 
Eo  nomine, 
En  autre  droit, 
Eslerpement, 
Elegit, 

Femme  sole, 
Femme  covert, 
Fera  naiura;, 
Fieri  facias, 
Fidelitates, 
Fidea  commissa, 

Habendum, 
Habeas  corpus, 

Id  ist  cerium  quod  potest  reddi  cerium, 

In  esse, 

In  pari  materia, 

In  delicto, 

In  transitu, 

In  rem, 

In  solido, 

InfaccE  ecclesia, 

Inter  vivos, 

Ipsofaclo, 

Jure  gentium, 
Jure  mariti, 
Jus  accrescendi, 
Jus  post  liminii, 


Juris  et  de  jure, 
Jus  disponendi, 
Jetison, 
Jure  belli, 

Lex  loci  contractus, 
Lex  domicilii, 
Lex  loci  rei  cita, 

Lex  fori, 

Lis  pendens, 

Lege  loci, 

Locatio, 

Locatio  aperis  faciendi, 

Location  cuslodia, 


i  summce  minor  in  est, 
Miilum  in  se, 
JVIalum  prokibitum, 
Mandalum, 

Aec  erit  alia  lex  Romcs,  alia  Athaenis, 
alia  nunc,  alia,  poal/iac,  sed  et  omnes 
gentes,  et  omni  tcmpore  una  lex  et  sent- 
piterna  et  immortalis  continent. 


Ry  force  of  the  act. 

From  one  party. 

By  that  name. 

In  right  of  another. 

Waste 

Elects,  right  to  elect. 

Unmarried  woman. 

Married  woman. 

Of  a  wild  nature. 

Cause  to  he  made. 

Of  fidelity. 

Things  given  to  another  in  trust. 

To  have. 
Have  the  body. 

It  is  certain  that  may  be  rendered  so. 

In  being. 

Relating  to  like  matters. 

In  the  neglect  of  duty. 

On  the  passage. 

Against  ihe  thing. 

All  together  as  one. 

In  the  face  of  the  church. 

Between  living  persons. 

By  the  act  itself. 

By  the  law  of  nations. 

By  right  of  the  marriage. 

Law  of  accretion  or  increasings- 

The  law  of  those  who  were  killed  in  battle 
or  returned  Irom  captivity,  by  provision 
of  which  they  were  supposed  never  to 
have  been  absent. 

Of  the  law  and  by  right. 

Right  of  disposing  of. 

A  thin?  cast  overboard. 

Bv  right  of  war. 

Law  of  the  place  of  the  contract. 

Law  of  the  domicile. 

Law  of  the  place  where  the  thing  is  sit- 
uated. 

Law  of  the  court  as  to  proceedings. 

Suit  depending. 

By  the  local  law. 

Lettting  for  hire. 

Letting  of  services  for  hire. 

Letting  to  keep  for  hire,  as  upon  storage, 
or  commission. 

In  the  greater  sum  the  less  is   contained. 

Bad  in  itself. 

Bad  because  prohibited. 

Commission  without  reward. 

It  is  not  the  law  of  Rome,  neither  of 
Athens  ;  nor  of  now,  nor  hereafter,  but 
it  is  one  law  of  all  people,  and  of  all 
time,  and  is  of  universal  and  eternal 
obligation. 


•GLOSSARV. 


249 


Nan  c«mpns  mentis, 
Nudem  fiactum, 
Naif  us  )'o/e//s, 
Nullius  fitliits. 


Not  of  sound  mind- 
A  ri.iki-d  agreement. 
Un willinsr  or  willing. 
No  man's  son. 


plus  juris  in  alium  transfer-    No  one  may  convey  greater  right  to  ano- 


Nemo 

rc  quam  ip&o  lwb".t, 

Pnlrem  habere  win  inttitiguntnr. 

Per  verb  a.  de  presenti, 

Per  verba  de  future, 

Per  autre  vie, 

Per  capita, 

Pe  r  fa  rmain  doni, 

per  stirpes, 

Prim  a  facie, 

Pro  forma, 

Possessiofratris, 

Pupitiius  pati  non  inteligilur-, 

Pro  hnc  vici, 
Pro  raka  itineris, 
Pro  lanto, 

Qoud  damno  fatali  contingit,  cuivis  diii- 
gentissimo  possit  cantingere. 

Qui  nolent  inter  se  contendere,  solent  per 
nuntiam  rcm  emere  in  comnwne  quod  a, 
societate  longe  remwtum, 


Quia  emptores, 
Quare  clausumfregit, 

Reddendum, 
JRespodentia, 
Res  judicatez, 

Scandalum  magnatum, 

tSub  potentate  viri, 

Salvo,  fide  et  ligentia  domini  regis, 

Seisina  facit  stipitem, 
Stricti  juris, 
Sub  modo, 

Subpoena, 
Supra,  protest, 

Tenendum, 
Unde  nih.il  h,abetr 


ther  than  he  himseli'  has- 

To  have  a  father  unknown. 
By  words  in  the  present  lense. 
By  words  in  the  future  tense- 
By  another  life. 
By  heads. 

By  the  form  of  the  gift. 
By  roots- 
First  lace,  first  view. 
According  to  form,  for  forms- 
Possession  of  ihe  brother. 
The  infant  is  protecied  by  not  understand- 
ing. 

For  that  time  or  occasion. 
According  to  the  distance  passed. 
For  so  much- 
Damage  which  happens  because  of  fate 
and  which  the  utmost  diligence  may 
not  prevent. 

They  who  are  not  willing  between  them- 
selves to  undertake  as  mutually  bound, 
accordingto  theircustom,  by  agent  may 
purchase  a  thing  in  common  ;  and  yet 
from  a  partnership  be  far  remote. 
As  to  purchasers. 
Why  the  close  is  broken. 

The  return  or  render. 
Things  hound  or  pledged- 
Thing  adjuclicated- 

Slander  of  the  great. 

Under  the  control  of  the  man. 

Preserving  faith  and  leigance  to  the  lord 

the  king- 
Seisin  makes  the  stock. 
Of  positive  law. 
Under  some  circumstances,  in  a  special 

manner. 
Under  penalty. 
Upon  protest,  after  having  been  protested. 

To  hold. 

By  what  means,  or  why  she  has  nothing. 


A  LIST  OF  VALUABLE  STANDARD 
LAW  BOOKS; 

PUBLISHED    AND    FOR    SALE    BY 

COLLINS,  KEESE  &  CO., 
254  PEARL  STREET,  NEW  YORK. 


AMERICAN    EQUITY    DIGEST.       An    Analytical    Digest   of   the 

Equity  Cases  decided  in  the  Courts  of  the  several  States,  and  of  the  United  States, 
from  the  earliest  periods,  &c.  Forming-  a  complete  abstract  of  all  the  American 
Equity  Reports,  down  to  1836.  By  O.  L.  Barbour  and  E.  B.  Harrington,  Esqrs. 
In  3  volumes. 

A  work  highly  recommended  by  Chancellor  Walworth,  Judge  Cowen,  Chief  Justice  Savage, 
Professor  Hoffman,  of  the  Maryland  University,  Baltimore,  &c.  Judge  Cowen  says  of  it, 
"I  do  not  hesitate  to  say,  that  the  plan  cannot  be  better  executed  than  it  has  been.  The  book 
is  essentially  necessary  to  the  Chancery  practitioner." 

ARCHBOLD'S  APPENDIX.  A  Collection  of  the  Forms  and  Entries 
which  occur  in  practice  in  the  Courts  of  King's  Bench  and  Common  Pleas,  in 
Personal  Actions  and  Ejectment.  By  John  Frederick  Archibald,  of  Lincoln's-Inn, 
Barrister  at  Law. 

BURROW'S  REPORTS.     Reports  of  cases  argued  and  determined  in 

the  Court  of  King's  Bench  under  Lord  Mansfield,  from  1756  to  1772,  in  five  vol- 
umes. By  Sir  James  Burrow,  Knt.,  late  master  of  the  Crown  Office  and  Bencher 
of  the  Inner  Temple.  Second  American  from  the  Fourth  London  Edition,  edited 
by  J.  Presscott  Hall,  Esq.  Five  volumes  bound  in  two. 

CHIEF  JUSTICE  MARSHALL'S  DECISIONS.  Reports  of  Cases 
deeided  by  the  Honourable  John  Marshall,  late  Chief  Justice  of  the  United  States, 
in  the  Circuit  Court  of  the  United  States  for  the  District  of  Virginia  and  North 
Carolina,  from  1802  to  1833  inclusive,  edited  by  John  W.  Brockenbrough,  Coun- 
sellor at  Law.  Two  volumes. 

CHITTY'S  BLACKSTONE.  Commentaries  on  the  Laws  of  England, 
;  in  Four  Books,  with  an  Analysis  of  the  work.  By  Sir  William  Blackstone,  Knt., 
Justice  of  the  Court  of  Common  Pleas.  From  the  Eighteenth  London  Edition, 
with  a  life  of  the  Author,  and  notes  by  Christian,  Chttty,  Lee,  Hoiendon,  and  Ry- 
land ;  and  references  to  Arrferican  Cases,  by  a  member  of  the  New  York  Bar.  In 
two  volumes. 

CHITTY  ON  BILLS.     A  Practical  Treatise  on   Bills  of  Exchange, 

Banker's  Cash  Notes,  Checks  on  Bankers,  Promissory  Notes  and  Bank  Notes. 
By  Joseph  Cliitty,  Esq.  of  the  Middle  Temple  Barrister  at  Law.  Eighth  American 
from  the  Eighth  London  Edition;  greatly  enlarged  and  improved,  containing  the 
American  notes  of  former  Editions,  with  an  Appendix  of  Precedents,  and  the  de- 
cisions of  the  English  and  American  Courts,  brought  down  to  the  year  1834.  By 
P.  O.  Seebee,  Attorney  at  Law.  One  volume,  1000  pages. 


CHITTY'S  PLEADINGS.  A  Treatise  on  the  Parties  to  Actions. 
Forms  of  Actions,  and  Pleading,  with  a  Collection  of  Practical  Precedents,  and 
notes  thereon.  By  Joseph,  Chitly,  Esq.,  of  the  Middle  Temple,  Barrister  at  Law. 
Seventh  American  from  the  last  London  Edition,  with  notes  and  additions  by  John 
A.  DuiUap,  Esq.,  and  references  to  late  decisions,  by  E.  D.  Ingraham,  Esq.  Three 
volumes. 

CHITTY'S  CRIMINAL  LAW.  A  Practical  Treatise  on  the  Criminal 
Law,  comprising  the  Practice,  Pleading,  and  Evidence  which  occur  in  Criminal 
Prosecutions,  with  a  copious  collection  of  Precedents  and  comprehensive  notes. 
By  Joseph  C/iMy,  Esq.  of  the  Middle  Temple,  Barrister  at  Law.  Third  American 
from  the  last  London  Edition,  corrected  and  enlarged  by  the  author.  With  notes 
and  corrections,  by  Richard  Peters  and  Thomas  Huntington,  Esqrs.  and  references 
to  the  latest  English  and  American  Decisions.  By  J.  C.  Perkins,  Esq.  Counsel- 
lor at  Law.  Three  volumes. 

CHITTY  ON  CONTRACTS.  A  practical  Treatise  on  the  Law  of 
Contracts  not  under  seal,  and  upon  the  usual  defences  to  actions  thereon,  by  Jo- 
seph Chilly,  Jr.,  Esq.,  of  the  Middle  Temple.  Fourth  American  edition  from  the 
second  London  edition.  Corrected  and  greatly  enlarged  by  the  author,  with  the 
notes  of  former  editions ;  to  which  are  now  added  copious  notes  of  American  De- 
cisions to  the  present  time.  By  J.  C.  Perkins,  Esq.  One  volume. 

COLLYER  ON  PARTNERSHIP.  A  Practical  Treatise  on  the  Law 
of  Partnership.  By  John  Collyer,  of  Lincoln's  Inn,  Esq.,  Barrister  at  Law.  With 
Notes  of  American  Cases.  By  William  Phillips  and  Edward  Pickering,  Esqrs. 
From  the  London  Edition.  In  one  volume. 

"  Of  the  four  treatises  [Watson,  Montague,  Gow  and  Collyer,]  Collyer  is  to  be  preferred." — 
Warren's  Law  Studiet. 

COMYN  ON  CONTRACTS.     The  Law   of  Contracts  and  Promises 

upon  various  subjects,  and  with  particular  persons,  as  settled  in  the  action  of  as- 
sumpsit ;  in  three  parts,  by  Samuel  Comyn,  Esq.,  of  the  Middle  Temple,  Barrister 
at  Law.  Third  American  from  the  last  London  Edition,  with  notes  and  referen- 
ces to  American  authorities,  by  Thomas  Huntington,  Esq.,  Counsellor  at  Law. 
One  volume. 

CRUISE'S  DIGEST.  A  Digest  of  the  Laws  of  England  respecting 
Real  Property ;  by  William  Cruise,  Esq.,  Barrister  at  Law.  Fourth  American 
from  the  third  and  last  London  Edition,  revised  and  corrected  by  the  author,  with 
notes  and  references  by  Thomas  Huntington,  Esq.,  Counsellor  at  Law.  Six  Vol- 
umes bound  in  three. 

COWPER'S  REPORTS.  Reports  of  cases  adjudged  in  the  Court  of 
King's  Bench,  from  1774  to  1778,  in  two  volumes,  by  Henry  Cowper,  Etq.,  of  the 
Middle  Temple,  Barrister  at  Law,  with  notes  of  reference  to  similar  cases  in  sub- 
sequent reporters.  Second  American  from  the  last  London  Edition,  edited  by  J. 
Prescott  Hall,  Esq.  Two  volumes  bound  in  one. 

DUER'S  JURISPRUDENCE.  Outlines  of  the  Constitutional  Juris- 
prudence of  the  United  States,  designed  as  a  Text  Book  for  Lectures  and  popular 
use,  by  William  Alexander  Duer,  L.L.D.,  President  of  Columbia  College  in  the 
city  of  New  York.  One  volume,  I2mo. 

DURNFORD  &  EAST'S  REPORTS.  Reports  of  cases  adjudged  in 
the  Court  of  King's  Bench,  from  1785  to  1800,  by  Charles  Durnford  and,  Edward 
Hyde  East,  Esqrs.,  of  the  Temple,  Barristers  at  Law,  in  eight  volumes.  Third 
American  from  the  Fifth  London  Edition,  corrected  with  additional  references  to 
later  English  and  American  authorities.  Eight  volumes  bound  in  four. 


ENGLISH  COMMON  LAW,  FIRST  SERIES  ;  containing  Bur- 
row's,  Cowper's  and  Durnford  &  East's  Reports.  Fifteen  volumes  bound  in  eleven. 

This  series  includes  all  the  Standard  English  Reports,  from  175G  to  1800,  inclusive, 
and  contains  a  body  of  Law  and  Precedents  that  no  member  of  the  Bar  can  do 
without.  East,  Maule  and  Sehvyn,  and  Barnwelland  Alderson,  which  form  the 
connecting  link  between  the  above  and  the  Philadelphia  Edition  of  the  Common 
Law  Reports,  are  now  being  reprinted ;  when  finished,  the  whole  wiH  make  a  com- 
plete series  of  the  English  Common  Law  Reports  from  1756  to  the  present  time. 

EXCHEQUER  REPORTS.     Reports  of  cases  argued  and  determined 

in  the  Court  of  Exchequer,  at  Law  and  Equity,  and  in  the  Exchequer  Chamber 
in  Equity  and  in  Error,  edited  by  Francis  J.  Troubat,  Esq.,  of  the  Philadelphia 
Bar.  Six  volumes. 

FONBLANQUE  ON  EQUITY.  A  Treatise  on  Equity,  with  notes  and 
references,  by  John  Fonblanque,  Esq.,  Barrister  at  Law.  Fourth  American  Edi- 
tion, with  additional  notes  and  references  to  American  Chancery  Decisions.  By 
Anthony  Laussat,  Esq.,  of  the  Philadelphia  Bar.  One  volume. 

GOULD'S  PLEADING.  A  Treatise  on  the  Principles  of  Pleading  in 
Civil  Actions,  by  James  Gould.  Second  Edition,  revised  and  corrected  by  the  au- 
thor. One  Volume. 

Extract  of  a  letter  from  Chief  Justice  Marshall,  dated, 

RICHMOND,  Dec.  3rd.  1832. 

"  I  have  read  the  work  through  with  advantage  to  myself,  and  with  some  surprise  at  finding 
that  a  subject  which  has  employed  so  many  pens,  should  still  admit  of  being  presented  in  a 
form  that  may  make  the  book  an  acquisition  certainly  to  the  Law  Student,  and  indeed  to  the 
profession.  You  have  well  arranged  the  matter  belonging  to  the  subject,  and  have  succeeded 
in  your  design  of  presenting  it,  "  as  a  system  of  consistent  and  rational  principles,  adapted 
with  the  utmost  precision  to  the  administration  of  justice,  according  to  uniform  rules." 

By  showing  the  reason  of  the  rule  plainly,  the  rule  itself  becomes  more  intelligible  to  the 
student,  and  will  more  certainly  adhere  to  his  memory. 

Allow  me  to    repeat  my  thanks  for  the  gratification  afforded  me  by  the  perusal  of  your 
work,  and  to  assure  you  that  I  am  with  very  great  respect, 

Your  obliged  and  obedient  servant, 

J.  MARSHALL. 


Extract  of  a  letter  from  Chief  Justice  Spencer,  dated, 

ALBANY,  Dec.  27th,  1832. 

If  my  opinion  is  entitled  to  any  consideration,  it  is,  that  you  have  given  to  the  profession 
a  Work  evidently  useful ;  and,  I  may  add,  have  supplied  what  was  wanting, — a  logical  and 
scientific  treatise  on  a  most  essential  part  of  legal  science.  It  has  always  been  my  opinion, 
that  no  man  could  be  an  accomplished  lawyer  unless  he  was  thoroughly  imbued  with  the  learn- 
ing of  Pleading, 

With  sentiments  of  high  esteem  and  respect, 

Your's  sincerely, 
A.  SPENCER. 

HALL'S  SUPERIOR  COURT  REPORTS.    Reports  of  Cases  argued 

and  determined  in  the  Superior  Court  of  the  City  of  New.  By  Jona.  Prcscott 
Hall,  Counsellor  at  Law.  Two  Volumes. 

HOVENDON   ON  FRAUDS.     A  General  Treatise   on  the  Principles 

and  Practice  by  which  Courts  of  Equity  are  guided  as  to  the  Prevention  and  Re- 
medial Correction  of  Fraud,  with  numerous  incidental  notices  of  Collateral  Points, 
both  of  Law  and  Equity.  By  John  Eyken  Hovendon,  Esq.,  of  Gray's  Inn.  Barris- 
ter at  Law.  First  American  Edition,  with  notes  and  references  to  American  De- 
cisions, by  Thomas  Huntington,  Esq.,  Counsellor  at  Law.  Two  volumes  bound 
ia  one. 

KENT'S  COMMENTARIES.     Commentaries  on  American   Law,  by 

James  Kent.    Third  Edition,  revised  and  corrected  by  the  Author.    Four  volumes. 


KINNE'S  BLACKSTONE.     The  most  important  parts  of  Blackstone's 
Commentaries  reduced  to  Questions  and  Answers.     By  Asa  Kinne.     One  Vol- 
ume.    Second  Edition  improved  and  enlarged  with  an  Index  and  Glossary. 
Extract  of  a  Letter  from  Chancellor  Walworth  of  New  York. 

"  I  think  this  compilation  will  be  found  useful  to  the  profession,  especially  to  students, 
who  will  here  find  an  admirable  plan  for  common-placing  their  studies.  I  have  no  doubt  also 
that  it  will  be  found  useful  to  citizens  of  other  professions  and  occupations,  and  in  Academies, 
and  for  the  higher  classes  in  Common  Schools,  as  no  one  can  become  too  w  ell  acquainted  with 
the  leading  principles  of  the  common  law,  as  developed  in  the  commentaries  of  the  English 
Judiciary." 

R.  H.  WALWORTH. 


From  Chancellor  Kent  to  the  Author. 

"  It  cannot  but  be  useful,  and  your  book  will  excite  and  promote  the  study  of  the  Volumes 
at  large,  and  promote  the  knowledge  of  legal  principles." 

JAMES  KENT. 


From  Peter  S.  Du  Ponceau,  Esq.,  Counsellor  at  Law,  Philadelphia. 

"  I  have  read  with  great  pleasure  your  Abridgment  of  Blackstone's  Commentaries,  in  the 
form  of  Questions  and  Answers.  It  is  a  handsome  Panorama  of  a  grand  Edifice.  It  will  be 
of  great  use  to  students,  particularly  in  preparing  for  their  examination  and  also  in  their  second 
and  subsequent  readings  of  the  original  work,  in  pointing  out  to  them  the  parts  to  which  their 
attention  is  to  be  especially  directed.  It  will  also  be  useful  to  practising  lawyers,  not  only  as 
a  good  index,  but  as  a  refresher  to  the  memory." 

PETER  S.  DU  PONCEAU. 

KINNE'S  KENT.  The  most  important  parts  of  Kent's  Commentaries, 
reduced  to  Questions  and  Answers.  By  Asa  Kinne.  One  Volume.  Second  Edi- 
tion with  an  Index  and  Glossary.  A  work  highly  recommended  by  many  of  the 
most  eminent  Jurists  in  the  United  States. 

Extract  of  a  Letter  from  Chancellor  Kent  to  the  Author. 

"  I  am  much  pleased  with  the  ability,  fidelity  and  accuracy  with  which  you  have  stated 
the  Answers  as  drawn  from  the  Text.  I  approve  of  the  work  and  wish  it  success,  for  I  think 
it  is  well  calculated  to  facilitate  and  promote  the  study  and  diffusion  of  the  elementary  prin- 
ciples of  constitutional  and  municipal  law  embodied  in  the  commentaries." 

JAMES  KENT. 

MERIVALE'S  REPORTS.  Reports  of  cases  argued  and  determined 
in  the  High  Court  of  Chancery,  from  1815  to  1817.  By  J.  H.  Merivale,  Esq.,  of 
Lincoln's-Inn,  Barrister  at  Law.  First  American  from  the  last  London  Edition, 
in  three  volumes. 

REEVE  ON  DESCENTS.  A  Treatise  on  the  Law  of  Descents  in  the 
several  United  States  of  America,  by  Tapping  Reeve,  late  Chief  Justice  of  Con- 
necticut. One  volume. 

STARKIE  ON  SLANDER.  A  Treatise  on  the  Law  of  Slander,  Libel, 
Scandalum,  Magnatum,  and  False  Rumors;  including  the  Rules  which  regulate 
Intellectual  Communications  affecting  the  character  of  individuals  and  the  inter- 
est of  the  public.  With  a  description  of  the  Practice  and  Pleadings  in  Personal 
Actions,  Informations,  Indictments,  Attachments  for  Contempts,  &c.  connected 
with  the  subject.  By  Thomas  Starkic,  Esq.,  of  Lincoln's-Inn,  Barrister  at  Law. 
With  notes  and  references  to  American  Decisions.  By  Thomas  Huntingion,  Esq., 
Counsellor  at  Law.  One  volume. 

STARKIE'S  REPORTS.  Reports  of  cases  determined  at  Nisi  Prius 
in  the  Courts  of  King's  Bench  and  Common  Pleas,  and  on  the  Circuit,  from  1814 
to  1819.  By  Thomas  Starkie,  Esq.,  of  Lincoln's-Inn,  Barrister  at  law.  First 
American  Edition,  in  three  volumes. 

COLLINS,  KEESE  &  CO.  have  constantly  on  hand  all  the  standard  English  Reports, 
Digests,  and  Treatises  on  Particular  Subjects  ;  together  with  the  various  State  Reports  and 
Digests,  and  a  general  assortment  of  Law  Books  of  ever)'  description. 


UCSB    LIBRARY 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

405  Hilgard  Avenue,  Los  Angeles,  CA  90024-1388 


D  <,*..-«  tkt 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


A     000616925     4 


